Volume 81 — South Carolina Reports

Before Memminger, J., Aiken, Fall term, 1904. Action by B. J. Anderson against South Carolina and Georgia Railroad Company. From judgment for plaintiff, defendant appeals. cite: Omission of element of proximate cause error: 78 S. Ci, 259; 77 S. C., 550. Instruction that certain facts constitute negligence is error: 54 S. C., 509. cite: Charge complained of did not violate the constitutional provision: 57 S. C., 369.

<p>Before Krugh, J., Pickens, February, 1908.</p> <p>Indictment by town of Central against N. C. Madden. From Circuit judgment affirming judgment below, defendant appeals.</p> <p>cite: Ordinance is unconstitutional and void: 19 Stat., 405; Con., art. V, sec. 21; Crim. Code, 12; 26 S. C., 121; 28 S. C., 50; 40 S. C., 381; 44 S. C., 362; 13 S. C., 546; 17 S. C., 80; Chev., 5-; 1 Bail., 459; 2 Bail., 267.</p> <p>Mr. Lyon, oral argument.</p>

Before Gage, J., Laurens, Spring term, 1907. Action by Gibbes Machinery Company against S. H. & M. E. Johnson. Erom judgment for plaintiff, defendants appeal. cite: Duty of seller in this case upon refusal of buyer to accept: 2 Benj. on Sales, 773. Measure of damages: 10 S. C., 91; 34 S. C., 508; 68 S. C., 367; 66 S. C., 61. cite: Measure of damages: 25 S. C., 70; 66 S. C., 61; Hadley v. Baxendale, 9 Ex.; 204 Pa., 556; 1 Pa. Su.

Before Gary, J., Laurens, September term, 1907. Action by H. Y. Leopard, by guardian, against Laurens Cotton Mills. From judgment for plaintiff, defendant appeals. Messrs.

<p>Before Gage, J., Charleston, November term, 1907.</p> <p>Action by Wm. R. Barrineau, Jr., by guardian, against Charleston Consolidated Railway, Gas and Electric Company. Erom judgment for plaintiff, defendant appeals.</p> <p>cite: Defendant should have been permitted to show plaintiff was able to engage in his usual occupation: 3 Elliott on Ev., sec. 1990. The provision of a witness testifying against himself does not apply to others in his behalf: Hale v. Henkle, 201 U. S.; 1 Green. Ev., sec. 456; 44 S. C., 330. On cross-examination witness may be asked such questions as tend to modify his evidence in chief: 16 S. C., 556; 5 Strob., 41; 25 S. C., 322; 29 S. C., 578; 35 S. C., 201; 55 S. C., 247.</p> <p>cite: Whether plaintiff was engaged in selling lottery tickets was irrelevant in this case: 79 S. C., 273; 33 S. C., 582. Relevancy of evidence is discretionary zvith trial Judge: 17 S. C., 134; 11 S. E., 440; 15 S. E., 277; 26 S. E., 377; 60 S. C., 70; 65 S. C., 26; 79 S. C., 122.</p>

<p>1. Juror. — In case one member of a panel of jurors is taken sick during the trial, it is not improper for the Judge to announce the fact and to ask generally if the case should proceed with eleven jurors.</p> <p>2. Ibid. — That counsel for plaintiff commented in argument on the fact that defendant’s counsel objected to going on with eleven jurors is not ground for new trial, although such comment was not warranted by the record.</p> <p>3. Testimony he bene esse. — Where a witness is examined de bene esse on proper notice, both parties being represented, it is not error for notary to say in certificate the witness was sworn and examined instead of “cautioned and sworn * * * and carefully examined.” Statute does not require the certificate to show deposition was sealed up by and kept in possession of notary until mailed.</p> <p>4. Tort — Foreign Laws. — An action for tort occurring in the State of Florida may be maintained against the carrier in this State and the law governing the case is the common law of the forum, whether Florida was historically originally an English province in absence of allegation and proof of the laws of Florida.</p> <p>5. Carrier — Passenger—Punitive Damages. — A complaint alleging a passenger alighted from a moving train at the wilful, unlawful and reckless urging and direction of the conductor, states a cause of action for wilfulness, but there being no evidence in this case tending to show the conductor wilfully invited, urged or assisted a lady to alight from a moving train, new trial is granted, although there is some evidence tending to show negligence on the part of the conductor.</p> <p>Mr. Justice Gary dissents.</p>

Before Klugh, J., Richland, December, 1907. Action by The George Norris Company against S. H. Levin’s Sons. Prom orders refusing to vacate attachment and to set aside service of summons, defendant appeals. cite: The complaint and affidavit are not sufficiently definite and certain: 10 S. C., 469; 21 S. C., 583; 28 S. C., 184.

Before Memminger, J., Marlboro, May, 1907. Action by Wm. T. Webster against Atlantic Coast Line Railroad Company. Held: ‘He can describe the effect and condition or anything that happened, but your question elicits a mere matter of opinion. What he calls a hard stroke somebody else would call an easy one.

<p>Before J. P. Carey, special Judge, Richland, April, 1905.</p> <p>Action by Smith Sons Gin and Machine Company against V. C. Badham. Prom order overruling demurrer, defendant appeals.</p> <p>cites: The note is nonnegotiable: 4 Ency., 1, 81; 28 S. C., 504; 48 S. C., 308; 41 S. C., 81; 69 S. C., 65; 71 S. C., 107; 63 S. C., 433. Judgment affirmed by divided court is judgment of Supreme Court: 62 S. C., 469. If yo, indorsement and delivery only constitutes an assignment: 7 Rich., 12; 1 Hill, 56; 3 McC., 236; 12 Rich., 31; 10 Am. Dec., 554; 44 Pa. St, 454; 4 Watts, 400; 34 Am. Dec., 558; 39 Am. Dec., 158; 95 Minn., 496; 42 Am. St. R., 118.</p> <p>Messrs. Shand & Shand cite: Is the note a negotiable promissory one? 1 Rand. Com. Paper, sec. 110; 1 Dan. Neg. Inst., sec. 43; 43 S. C., 78; 12 L. R. A., 145; 33 Md., 23; 75 N. Y. Supp., 781; 34 la., 544; 56 Ga., 264; 3 Kan., 382; 84 Ala., 304. If the note is non-negotiable, indorsement by payee makes his liability the same as that of indorser: 2 Dan. Neg. Inst., sec. 664; Story Prom. Notes, secs. 41, 128, 129; 2 Rand Com. Paper, secs. 660, 661; 30 S. C., 358; 12 Rich., 31; 30 S. C.,358; Booth v. June (note), 13 Rich., 31; 7 Rich., 12; 8 S. C., 104; 1 Rand. Com. Paper, sec. 70; 13 S. C., 579; 31 S. C., 434; 33 S. C., 375; 25 S. C., 126; 2 Gill., 330; 1 Dan. Neg. Inst., sec. 664. Demand was waived: 3 Rand. Com. Paper, secs. 1074, 1357; 2 Dan. Neg. Inst., sec. 1092; 57 Am. St. R., 254.</p>

Before Prince, J., Lee, September, 1907. Action by E. B. McCutchen against Atlantic Coast Line Railroad Company. From Circuit order affirming judgment of Magistrate R. H. Singletary, defendant appeals. Messrs. Willcox & Willcox and Henry B. Davis cite: The act is unconstitutional, in that it denies to the railroads the equal protection of the laws: 68 S. C., 339; 63 S. C., 169; 165 U. S., 150; 183 U. S., 79.

Before Dantzrer, J., Marlboro, January, 1908. Action by Sarius M. Odom, executor of Lucy Ellen Odom, against R. L. Newton and T. M. Newton, executors of Younger S. Newton and Mary Frances Terry. From order permitting plaintiff to file exceptions to referee’s report out of time, defendants appeal. cite: 50 S. C., 403; 53 S. C., 231; 36 S. C., 578; 71 S. C., 512. cite: 71 S. C., 512, 76 S. C., 566.

Before Krugh, J., Orangeburg, October term, 1907. Action by T. J. Bolen against Seaboard Air Line Railway. From order on circuit, affirming judgment of magistrate C. P. Brunson, defendant appeals. cite: Penal statute must be strictly construed, and unless recovery is had on amount and items in claim penalty will not be allowed: 36 S. C., 294; 73 S. C., 36, 71, 542; 72 S. C., 483; 71 S. C., 273.

Before Watts, J., Charleston, August, 1907. Summons to revive lien of judgment by J. C. Blohme, assignee of Cramer & Blohme in cause of Cramer & Blohme against C. T. Schmancke. From order refusing revival, Blohme appeals. cites: Until a judgment is entered there is no judgment: 43 S. C., 246; 40 S. C., 255; 27 S. C., 477; 14 S. C., 571; 21 S. C„ 259; 28 S. C., 78; 10 S. C., 278. Meaning of date of “original entry:” 78 S. C., 120.

Before Gary, J., Abbeville, October term, 1907. Action by W. C. Hall against James T. Latimer & Son. From judgment for plaintiff, defendant appeals on the following exceptions: I. “Because his Honor erred in charging the jury as follows: ‘Now I tell you what the assignment of it does guarantee; they warrant by the assignment that they are the owners of it and that it is a genuine paper, not fictitious.

Before Wilson, J., Chester, November, 1907. Action by Massillon Sign and Poster Company against Buffalo Lick Springs Company. From judgment, plaintiff appeals. cites: Title of goods passed when manufacture was completed: 24 Ency., 1063-65-68. Measure of damages: 49 N. H., 376; 24 Ency., 1065; 7 A. & E. Ann. Cas., 1172; 113 Tenn., 657; 20 Conn., 38; 43 L. W. R., 905; 45 N. E., 618; 28 Fed., 553; 68 S. C., 367; Chev., 155.

Before Hydrick, J., Charleston, March, 1908. Held: that where it appears on the face of the original complaint, the capacity in which the plaintiffs were then suing, that the defendants should have demurred for such defect, for the want of legal capacity to sue within twenty days after the service thereof, and, failing to do so, such ground was waived. 3. “Because his Honor should…

<p>Pleadings — Agricultural Lien. — An indictment in a magistrate court charging a lienor with selling crop under lien, need not allege that such sale was made without the written consent of lienee.</p>

<p>Before Dantzrrr, J., Richland, July, 1907.</p> <p>Action by Stephen Marsha against Richland County. From order affirming judgment of Magistrate Moorman, defendant appeals.</p> <p>cite: Common recognition of a boundary by the citizens and acquiescence by municipality will be accepted by the courts where the boundary is indefinite: 85 111., 562; 93 Ky., 444 ; 82 Ind., 321; 20 Ency., 1149 ; 27- S. C., 149 ; 64 la., 297.</p> <p>cite: Can the boundaries of a town, as fixed and established by statute, be changed or altered by common recognition or acquiescence? 20 Ency., 1150; 11 Lea., 1; 21 Fla., 492; 97 U. S., 284; 123 Cal., 598; 10 Col., 553; 20 Fla., 344; 24 Fla., 226. Can it be changed by the municipal authorities? 55 S. E., 499; 116 Ga., 313; 20 Ency., 1150, 1151; 12 Kan., 301; 11 Lea., 1; 1 Sevan., 164; 3 Head., 318; 93 Ky., 444.</p>

<p>Before Prince, J., Aiken, February, 1908.</p> <p>Action by A. M. Funderburg, by guardian, against Augusta and Aiken Railway Company. From order affirming judgment of Magistrate D. H. Turner, defendant appeals.</p> <p>cite: Rule requiring change of two dollars only is reasonable: 35 L. R. A., 489. Carrier is not bound to publish rules for governing employees: 10 J. & S-. 128; 34 Am. R., 277; 35 E. R. A., 489. Occasional departure from rule does not show waiver: 51 S. E., 119; 27 Ency., 1038.</p> <p>cite: Must the carrier furnish any change? 15 Am. St. R., 61; 56 Am. St. R., 626; 35 L. R. A., 489; 28 Ency., 167; Hutch, on Carriers, sec. 567b; Elliott on R. R., sec. 1063; 6 Cyc., 487. The rules shoidd have been published: 68 S. C., 352; 61 S. C., 506. It has been habitually disregarded: 71 S. C., 303; 28 Ency., 197; 52 Am. St. R., 579. And of this the officers of the company must take notice: 52 Am. St. R., 579.</p>

Before Memminger, J., Aiken, Fall term, 1907. Action by H. D. McCarty against Piedmont Mutual Insurance Company. From judgment for plaintiff, defendant appeals. Messrs. Croft & Croft cite: Agents of a mutual assessment company cannot waive by-laws and provisions adopted by members: 3„Abb. Pr. N. S., 173; 4 Allen, 118; 7 Allen, 343; 3 Allen, 603; 9 Allen, 331; 66 A. D., 410; 8 Gray, 37; May on Ins.

<p>Before Gary, J., Abbeville, October term, 1907.</p> <p>Action by Frasier & Co. against Charleston and Western Carolina Railway Company. From judgment of Circuit Court, plaintiff appeals.</p> <p>cites: Is this cm interstate shipment? 145 U. S., 192; 162 U. S-, 650’; 173 U. S., 285; 75 S. C., 276; 169 U. S., 133, 311.</p> <p>cites: Court properly held this to be cm interstate shipment: 29 S'. C., 510 ; 187 U. S., 617; 18 Fed., 13 ; 3 F. R. A., 238; 7 Inters. Com. R., 92, 160, 161; 17 E. R. A., 433; 4 Inters. Com. R., 403; 34 S. W., 1003 ; 33 L. R. A., 570; 145 U. S., 193; 143 U. S., 317.</p>

Petition for injunction in the original jurisdiction of this Court by T. A. Amerker, J. S. Wannamaker and G. A. Baxter against R. E. Taylor, J. M. Grosswell et al., composing the county dispensary board of Orangeburg county.

<p>Before Watts, J., Cherokee, November, 1907.</p> <p>Action by Eli Macon against Southern.' Railway Company. Erom judgment reversing judgment of Magistrate L. T. Rigon, plaintiff appeals.</p>

<p>Carrier — Freight—Pekaxty.—A shipment from a point within this State through a portion of the State of Georgia to a point within this State is an interstate shipment, and the statute (24 Stat., 671) providing a penalty for delay in transportation of freight does not apply to such shipment.</p>

Petition in the original jurisdiction of this Court by J. W. Panford, as one of the trustees of Panford School District, and T. R. DeShields, J. M. DeShields, O. P. Panford and C. P. Waldrop, resident taxpayers of said district, for writ of mandamus against W. H. Drummond and W. G. Patterson, as trustees of said district. Statement of the Petition and Return.

Before Prince, J., Lee, September, 1907. Action by Standard Supply Company against Carter & Harris. From order overruling demurrer to answer, plaintiff appeals. Messrs.

Appeal by W. M. Mayes and Lizzie Stewart from two orders of injunction issued by Mr. Chief Justice Pope on May 18, 1907, and August 6, 1907, in case of Barnard B. Evans against W. M. Mayes and Lizzie Stewart. cites: The injunction was improper because permanent and without notice: Code 1902, 240; 9 S. C., 303; 37 S. C., 337; 7 S. C., 235. It should not be used to take property from one and give it to another: 27 S. C., 415. Plaintiff has ample remedy at lazv: 10 Ency.

Before Purdy, J., Cherokee, June, 1907. Action by James Griskell, administrator of Charles Griskell, against Southern Railway Company. From order of nonsuit, plaintiff appeals. cite: Witness, after stating facts, may give his opinion: 19 S. C., 501; 59 S. C., 314; 72 S. C., 366, 359; 67 S, C., 359. It was not absolute duty of deceased to stop, look cmd listen: 76 S. C., 376; 73 S. C., 393; 77 S. C., 344; 78 S. C., 374.

Before Prince, J., Clarendon, January, 1908. Two indictments against James for violating Sunday laws. From order affirming judgment of Magistrate S. M. Yournans, defendant appeals. cites: Several acts constitute one violation only: 57 Am. R., 464; 2 Bish. Cr. Proc., sec. 814. Delivery of meat and ice in hot months is a necessity: 50’ Ga., 242; 6 Mass., 76; 44 U. S., 714; 2 McC., 448; 21 Ency., 450'; 24 Pa., 398; 4 Pa., 375; Carver v. State, 35 Am. R.; 33 Am.

<p>Before Prince, J., Clarendon.</p> <p>Action by J. H. Cunningham against Clarendon County. From judgment reversing judgment of County Board of Commissioners, defendant 'appeals.</p> <p>cites: Code 1902, 769, 806; 40 S. C., 276; 22 S. E., 772.</p> <p>cites: 24 S. C., 543; 1 S. C., 403, 146, 622; 18 S. C., 150; 21 S. C., 414; 40 S. C„, 276; 42 S. C., 321; 55 S. C., 502.</p>

Before Watts, J., Spartanburg, Fall term, 1907. Action by T. R. Trimmier, administrator of J. W. Allison, against Atlanta and Charlotte Air Tine Ry. Co. From judgment for plaintiff, defendant appeals. Messrs. Sanders & DePass cite: This suit is not brought by the administrator: 8 Rich., 345; 56 S. C., 251; 32 S. C., 376; 41 S. C., 16, 397; 2 Bail., 177, 463; 8 Rich., 345; 2 Strob., 3.

Before Prince, J. Richland, April, 1907. Action by Eli Jones and Eliza Jones against E. W. Parker, E. A. Eorick and J. A. H. Geiger. From the judgment against Parker, for plaintiffs, he appeals. cite: As to charge on facts: 47 S. C., 489; 51 S. C., 453. Parker is not responsible for the assault: 4 S. C., 386; 1 Ency., 1135. Lorick had authority to call in assistance: 2 McM., 202; 1 Ency., 631. As to constructive levy: 2 Brev., 501; 50 S. C., 112.

Before Krugh, J., Orángeburg, October term, 1907. Action by State of South Carolina against Malony & Carter, The Cudahy Packing Company and Jennings & Smoak. Prom judgment for plaintiff, the defendant, The Cudahy Packing Company, appeals. cite: Letter of appellant to Malony & Carter unlawfully excluded: Jones on Ev., sec. 599; 24 Ency., 672; 1 Wall., 637.

<p>Mental Anguish — Special Damages — Pleadings—Telegraph Companies Notice — Presumption.—It will not be presumed that a first cousin of a deceased suffered mental anguish from failure to attend the funeral caused by negligence in delivering a telegram. Such injury would be special damages, which must be specifically alleged, and the telegraph company must have special notice of the circumstances.</p> <p>Mr. Justice Gary dissents.</p>

<p>Before MemmingER, J., Charleston, January, 1907.</p> <p>Petition by Martin K. Berger, in re Harris Livingstain, against Columbian Banking and Trust Company. From circuit order refusing the petition, petitioner appeals.</p> <p>cite: 77 S. C., 305.</p> <p>cites: Perry on Trusts, 487.</p>

<p>Before Memminger, J., Sumter, July, 1907.</p> <p>Action by Nettie F. Parrott et al. against George McD. Barrett et al. From- circuit decree all parties appeal except defendants, T'hos. M. Dent and- Margaret A. Phillips.</p> <p>Mr. Stuckey cites: Party in interest may make secured bids: 75 S. C., 378; 76 S.C., 499; 10- Rich, Eq., 323. Tenant having dealt with a part of common property as his own should have this assigned him: 33 S. C., 404; 35 S. C., 61; 39 S. C., 450 ; 43 S. C., 38; 73 S. C., 35.</p> <p>cite: The doctrine in Moore v. Williamson, io Rich. Bq., 32Z, was not overruled by, but acknowledged in, 75 S, C., 369; 76 S. C., 494; 79 S. C., 394.</p> <p>cite: Return of commissioners must be sustained unless there be good reason to impugn it for unfairness: 76 S. C., 494.</p> <p>cite: No unfairness having been shown on part of commissioners, their return must stand: 75 S. C., 309; 76 S. C., 494; 79 S. C., 394; 23 S. C., 323; 19 S. C., 101; 5 S. C., 433; Rich. Eq. Cas., 178; 14 S. €., 454; 16 S. C., 486; 1 Bay, 454; 70 S. C., 543; 58 S. C., 299; 62 S. C., 705. The previous opinion in this case settles the scheme of partition: 17 S. C., 163; 19 S. C., 156; 21 S. C., 501; 47 S. C„ 525; 51 S. C., 333.</p>

Before Watts, J., Union, September, 1907. Petition by Union' Manufacturing and Power Company to open judgment in case of Sue R. Jeter and Mary A. Jeter and to make it a party. From order refusing petition, petitioner appeals. cite: The petitioner has vested rights, which should be protected: 1 Hill (N. Y.), 324; 33 S. C., 408; 33 S. C., 175; 35 S. C., 146; 39 S. C., 449; 15 Eney., 1033; 21 U. S., 409; Wash. Eas. & Serv., 6; 3 L. R. A., 789.

Before Hydricic, J., Sumter, November term, 1907. Action by R. F. DuBose against Atlantic Coast Line Railroad Company. From judgment for defendants, plaintiff appeals. cite: Negligence is presumed from injury to passenger: 61 S. C., 345; 60 S. C., 48; 57 S. C., 229. Care due passenger: 20 S. C., 222. Once a passenger, a passenger to end of destination: 52 S. C., 566; 51 S. C., 154. Care due such person: 51 S. C., 154.

<p>1. Bailor and Bailee — Negligence.—It is not incumbent on bailor, in suit for goods lost by bailee, to show goods were lost by negligence of bailee.</p> <p>2. Warehouseman — Package Room. — A common carrier in providing a place where packages may be checked and kept for a fee is a warehouseman and may limit its liability for loss of a package by stipulation on the back of the receipt.</p>

Before Purdy, J., Spartanburg, July, 1907. Action by Margaret Vaughan, Nancy Laura Jones and . Charlotte Rebecca Morgan against Leannie Langford, W. E. Langford et al. Eromi circuit decree, defendants appeal. Messrs. Simpson & Bomar cite: Devisees under the will are estopped from saying grant was not in fee: Mitchell v. Cleveland, 76 S. C.; 26 S. C., 165. Grantor could dispose of reverter: 4 Kent., 498.

Rule issued by this Court on its. own motion against John T. Duncan, requiring 'him to show cause why he should not be disbarred. '

<p>Before DantzrER, J., Chester, Spring- Term, 1907.</p> <p>Action.' by John McCandless, executor of Hamilton Mc-Candless, against D. M. Mobley and J. R. Hicklin. Prom judgment for plaintiff, he appeals.</p> <p>cite: The order refusing to strike out parts of the answer is now appealable: 74 S. C., 13; Code of Proc., 11, su'b. 1; 11 S. C., 122; 65 S. C., 226; Code of Proc., 170, sub. 2, 181; 60' S. C., 525. The matters struck out aire irrelevant or redundant: Pom. Code Rem., sec. 527; 73 S. C„ 29; 18 S, C., 473; Bliss on Code Plead., secs. 214, 423; Code of Proc., 163; 79 S. C., 312; 64 S. C., 513. Payment is an affirmative defense: 15 S. C., 80'; and burden is on him who asserts: 11 S’. C., 547. Evidence as to deceased paying money to defendant is incompetent: 51 S. C., 502; 41 S’. C., 130; 59 S. C., 524; 33 S. C., 303.</p> <p>cites: Presumption of nom payment from possession of notes may be rebutted: 22 Ency., 588-9, 1234; Lawson on Pres. Ev., 639; and may be shown by facts and circumstances: 15 S. C., 81; 1 Rich. Eq., 55; 3 McC., 341; 15 Rich. L., 37; 4 S. C., 122; 7 S. & R., 116; 69 Pa. St., 156; 22 Ohio St., 517; 58 111., 360; 5 Jones, 192; 41 Conn., 55; 11 La. Ann., 760'; 2 A. K. Marsh, 12; 70 N. C., 173; 36 Ala., 525; 32 At. R., 649; 1 Pick., 337; 105 Mass., 255; 61 N. W., 177; 5 S. E., 535; 22 Ency., 606. Evidence as to the form in which the money was received is competent: 35 S. C., 206; 33 S'. C., 310; 59 S. C., 524; 16 P. & P., 184, 193. Portions of answer moved to have struck out were not irrelevant or redundant in a legal sense: 50 S. C., 54; 60 S'. C., 370; Pom. Code Rem., sec. 551; 73 S. C., 29; 78 S. C., Ill; 72 S. C„ 526; 48 S. C., 182. No disadvantage shown because these parts of answer ivere left in: 73 S. C., 571; 72 S. C., 125; 60 S. C., 70.</p>

<p>1. Easement — Right of Way — Reai. Property. — Conveyance of right of way in lands of intestate by administrator carries no title of heir at law, except the interest, if any, of administrator as heir.</p> <p>2. Read Property — Two Actions — -Partition.—An action for partition of a tract of land may be brought after two years after discontinuance of an action for possession of same land.</p> <p>3. Deeds — Issues—Boundaries.—Where words used in a deed executed under order of Court in describing boundaries of the land conveyed are free from latent ambiguity, the trial Judge should construe and interpret the deed and the opinion of witnesses as to whether the boundaries embraced certain lands is incompetent. Here the deeds made under a former partition proceeding construed in connection with the pleadings to convey the land sought to be here partitioned.</p>

Before Wieson, J., Lancaster, October, 1907. From taxation of costs in W. B. Caut'hen, administrator, and Arista Cauthen against Alexander Cauthen et al., W. B. Cauthen appeals. cite: Costs of appeal follow result in all cdses: 45 S. C., 4; 47 S. C., 150, 163. .

<p>1. Carrier — Passenger—Pleadings—Negligence.—In an action ex delicto by passenger against carrier, allegation of contract of transportation is merely to show existence of relation, and under section 186a of Code of Procedure, the pleader may jumble together in one cause of acdtan as many acts of negligence as he deems contributed to the alleged injury, whether they all occurred in this State or not.</p> <p>2. Ibid. — Ibid.—Negligence—Wilfulness.—There being no evidence as to the law of North Carolina in this case, the action is maintainable under the common law of the forum, and under that carrier is liable for punitive damages for wilful acts of its servants, whether it directed or ratified them or not.</p> <p>3. Ibid. — Ism.—Carrier is liable for nervous breakdown caused by its negligence in not making scheduled connection. Here there was also evidence tending to show the passenger was put to extra expense, delay and worry because of negligence in conductor in not informing her of an earlier train to her destination than the one he directed her to take.</p> <p>4. Ibid. — Ibid.—Wilfulness cannot be inferred from the fact that the porter of a Pullman car asked a passenger, who had only purchased a seat in the car, to change her seat several times, nor from the fact that he took out her luggage at the point at which she was to change cars according to her ticket.</p> <p>5. Ibid. — Ibid.—The carrier is not liable for wilfulness in porter of Pullman car in not making up berth.</p>

Before HydriCk, J., Anderson, December, 1906. Action by J. P. Catlett against Charleston and Western Carolina Railway. From circuit order, modifying judgment of magistrate, defendant appeals. cites: Penalty is unconstitutional if applied to an interstate shipment: 196 U. S., 194; 78 S. C., 36. Boss of shipment occurred zvith terminal carrier, and in such case penalty statute is constitutional: 78 S. C., 36.

<p>Before Wilson, J., Lexington, January, 1908.</p> <p>Action by J. M. Thompson, administrator of Charles A. Thompson, against Seaboard Air Line Railway. From judgment for plaintiff, defendant appeals..</p>

Before Krugh, J., Sumter, April, 1907. Action by James H. Scarborough against J. M. Woodley. From judgment for plaintiff, defendant appeals. Messrs. Lee & Moise and H. D. Moise cite: Demurrer to defense of estoppel zvas improperly sustained: 37 R. R. A., 593; 16 Cyc., 761, 783,-783; 27 Am. R.', 424; 12 Am, R., Ill; 85 Mich., 246; 39 Neb., 493; 84 N. Y., 499; 48 S. C., 267; 22 S, C., 548; 43 S. C., 441; 57 S. C., 507; Pom. Eq.

<p>Before Gary, J., Abbeville, October, 1907.</p> <p>Action by J. A. Cheek against Seaboard Air Line Railway. From' judgment for defendant, plaintiff appeals.</p> <p>cites : Duty of Court to construe rules in evidence: Hughes on Inst, to Juries, secs. 156, 163; 121 Ind., 594; 104 N. Y., 155; 43 111., 420; 36 S. C., 294; 42 S. C., 67; 38 S. C., 420 ; 69 S. C., 421.</p> <p>Mr. Greene cites: Attention of Court should be called to error in stating issues: 62 S. C., 563; 65 S. C., 38. A request partly erroneous may be refused: 63 S. C., 489.</p> <p>Mr. Glenn cites: As to charging jury on the facts: 47 S. C., 489; 59 S. C., 37; 62 S. C., 546; 52 S. C., 438.</p>

<p>Before DantzeER, J., Orangeburg, December, 1907.</p> <p>Action by Julia Hughes against Orangeburg Manufacturing Company. From order refusing motion to make complaint more definite and certain, defendant appeals.</p> <p>cite: 13 Ency. P. & P., 908; Dab. on M. & S., secs. 836, 854; 69 S. C., 530; 73 S. C., 398; 75 S. C., 103; 78 S. C., 337; 54 N. W., 1035; 31 N. W., 163; 36 S. W., 1066; 31 At. R., 344; 35 At. R., 486; 30 So. R., 590.</p> <p>cite: 66 S. C., 13; 68 S. C., 304; 69 S. C„ 373.</p>

<p>Before Klugh, J., Richland, December, 1907.</p> <p>Action by City of Columbia against Mary McCreary Melton. Prom order overruling demurrer to answer, plaintiff appeals,</p> <p>cites: Restrictions to right of confirmation: 16 Ency., 1049; 2 Bay, 38; 1 N. & McC., 387; 4 McC., 541; 42 S. C., 299; Lewis Em. Domain, sec. 237. Respondent must rely on one of the following acts: 14 Stat., 569; 23 Stat., 1038; Code 1902, 2023. Damage resulting from change of grade in street does not fall within constitutional privilege of condemnation: 53 S. C., 82; 53 S. C., 597; 74 S. C., 539; 68 S. C., 163; 74 S. C., 539. Compensation for injury from surface water is provided by section 2023, Code 1902: 77 S. C., 281, 288.</p> <p>cite: It is actionable to collect surface water and discharge on another’s lands: 62 S. C., 25, 18; 67 S. C., 514; Lewis on Em. Dom., 541; 22 L. R. A., 627. Has plaintiff authority to condemn? 14 Stat., 569; 53 S, C., 87; 48 S. C., 562; 53 S. C., 575; 74 S- C., 541; 68 S. C., 183; 76 S. C., 95.</p>

Before Gage, J., Charleston, Fall term, 1907. Action by W. C. Geraty against Atlantic Coast Line Railroad Company. From judgment for plaintiff, defendant appeals. Mr. Mordecai cites: Error to admit railroad schedules: 15 S. C., 378. Judge should have construed the bill of lading: 3 S. C., 351; 19 S. C., 131; 33 S. C., 303; 37 S. C., 193; 33 S. C., 388; 39 S. C., 389; 37 S. C, 360.

<p>Before Watts, J., Laurens, August, 1907.</p> <p>Action by Gray and Shealy against Charleston a,nd Western Carolina Railway Company. From judgment for defendant, plaintiffs appeal.</p> <p>Messrs. Stanyarne Wilson and Sanders & DePass cite: Private person may maintain action for obstructing street: 49 S. C., 130; 30 S. C., 546; 5 Rich. L-, 583. Witness may give opinion as to whether chute was a nuisance: 61 S. C., 337; 73 S. C., 369; 73 S. C., 359; 63 C., 393. Evidence as to failure to rent houses should have been admitted: 35 S. C., 36 ; 61 S. C., 337.</p>

<p>1. Master and Servant — Negligence—Issues.—Upon evidence tending to show servant did not know an electric wire was live and that the master had not warned him, but assured him it was safe, issue of negligence was properly sent to the jury.</p> <p>2. Assumption of risks and contributory negligence are not conclusively shown by the evidence, nor are they the only inferences of which the evidence is susceptible.</p> <p>3. Charge' — New Trial. — The trial judge having expressed before the jury during argument on motion, in strong tgrms, his opinion as to the facts on a vital issue in the case, new trial is granted as for charge on facts.</p>

<p>Before Purdy, J., Spartanburg, July, 1907.</p> <p>Action by C. T. Brown against J. C. Thompson and Lucretia Thompson. From judgment for defendants, plaintiff appeals.</p> <p>cite: 1 Bay., 278; 1 Bail. L., 259; 31 Ark., 328; 12 S. C., 64; 27 S. C., 193; 8 Ency., 208, 209.</p>

Before WiESON, J., Lexington, February, 1908. Action by Reynolds & Craft against Seaboard Air Line Railway. From Circuit judgment affirming judgment of Magistrate U. W. Jeff coat, defendant appeals. cite: Connecting carrier is only agent of initial carrier: 19 S. C., 353. Remedy of plaintiff is against initial carrier: 6 Cyc., 495, Sec. f; 10 S. E. R., 1046. cites: Agent is responsible: 1 Ency., 1131, 1130, note 2. Plaintiff entitled to sue for excess: 8 Ency., 934; 15 Rich.

<p>1. Carrier — Freight—Jurisdiction—Penalty.—Suit for penalty for failure to pay damage to freight must be brought in that county in which the cause of action or some part thereof arose. But suit for damages to freight may be brought in any county in which the carrier has line of road and an office for transaction of its business. When suit for damages and penalty is .brought in county where cause of action did not arise, judgment should be given for damages only.</p> <p>2. Capacity to Sue — Demurrer.—Objection that complaint does not allege plaintiff’s capacity to sue should be made on general appearance, and not on appearance limited to objection of want of jurisdiction or defect of parties.</p>

Petition in the original jurisdiction of this Court by J. W. Little et al. against C. D. Barkesdale et al., election commissioners of Laurens county, to enjoin them from holding a special election on question of maintaining county dispensaries in Laurens county in connection with the general election of 1908.

Petition by J. G. Moore against J. O. Griffin asking for a writ of certiorari requiring the State Executive Democratic Committee to certify to the Supreme Court the record in the matter of contest between the parties before the County Executive Committee of Colleton county and appealed to the State Democratic Executive Committee. Mr. Justice Woods granted the writ on October 9th and made same returnable before Supreme Court on October 16 th.

Petition in the original jurisdiction of this Court by John M. Mauldin for writ of mandamus to require the board of pharmaceutical examiners to grant him a license to practice pharmacy.

<p>Petition in the original jurisdiction of this Court by People’s Bank of Greenville for writ of mandamus against J. P. Goodwin, County Supervisor, et al., to require him to issue his warrant against the county treasurer for certain claims.</p>

<p>1. Evidence — Pleadings.—Under allegation that a corpse through negligence and wilfulness of telegraph company was delivered to a medical association and delivered to the family in a ghastly condition, evidence as to its condition was competent.</p> <p>3.Ibid. — Custom of telegraph company as to messages for addressees living beyond free delivery limits is not competent unless it is shown the addressee had personal knowledge of the custom or that it was so notorious as to presume knowledge.</p> <p>3. Ibid. — Opinion.—Testimony to the effect that deceased was well known in a certain city and sold medicines there is as to a fact and is not an opinion.</p> <p>4. Ibid. — -Reply.—Evidence of addressee of a telegram that her deceased husband was" not addicted to the use of liquor and morphine is competent here in reply to letter of superintendent of hospital where husband died that he died of excessive use of liquor and morphine introduced by defendant.</p> <p>5. Ibid. — On issue of negligence in failure of telegraph company to deliver message beyond free delivery limit, evidence of mail carrier that he knew the address of addressee is competent.</p> <p>6. Telegraph Companies. — Under the rules of the Western Union Telegraph Company it must use due diligence to ascertain the address of an addressee of a telegram beyond its free delivery limits within a reasonable distance, and if a sufficient fee has not been charged in the first instance to pay for such delivery, it should give the sender an opportunity to pay the additional charges. Under evidence here it is held proper to send to jury the issue of negligence in failing to deliver a message to an addressee without the delivery limits, in the suburbs of a city where the company had delivered messages, the address of the addressee appearing in the city directory, although the company, by service messages, had tried to obtain a better address.</p>

<p>1. Mandamus is an appropriate remedy to compel a public service water company to supply its customers with water upon compliance with its reasonable rules and regulations.</p> <p>2. Water Cobipanees- — Reasonable Rules. — In absence of a statute making water rents a lien or encumbrance on the premises, a rule authorizing the company to cut off the supply upon refusal of a tenant to pay water rent of a delinquent landlord or former occupant is unreasonable, but such rule is reasonable when used to make the tenant pay proper water rent for water previously used by him.</p> <p>3. Ibid. — Under the facts here the water company has the right to charge petitioner meter rates.</p> <p>4. Ibid. — The right to cut off the water supply and to refuse to furnish more until past due bills are paid should not be used to coerce the consumer into paying a bill which is unjust or which the consumer in good faith and with show of reason disputes. Held here that the evi - dence raised a serious issue as to the correctness of the water meter and that the company violated its rules in shutting off the supply in ten days after rendering bill, and that it violated its duty to the public in refusing to enter into a contract with consumer for the current term.</p>

Before Wilson, J., Lexington, February, 1908. Two actions by M. E. Rutland against Southern Railway. From' judgment for plaintiff, in both cases, defendant appeals. cites: Bill of lading of N. Y. C. & H. River Railroad improperly admitted: 58 S. C., 247; 79 S. C„ 217; 74 S. C., 332; 78 S. C., 38; 112 Ga., 16-5. Declarations of agent not admissible: 17 S. C., 520-; 27 S, C., 64; 28 S. C., 157.

<p>Before Gage, J., Colleton, December,*1907.</p> <p>Action by E. H. Sparkman, trustee, against Robert E. Jones. From judgment for plaintiff, defendant appeals.</p> <p>cites: As to title by presumption of a grant: 20 S. C., 210>. Title cannot be shown by common repute: Sé S. C., 412. But may be shown how? 53 S. C., 220. Delivery of deed must be shozvn: 9 S. C., 249; 19 S. C., 211; 23 S. C., 89; 44 S. C., 364; 74 S. C., 144.</p> <p>Messrs. Howell & Gruber cite: Allegation that plaintiff is the owner in fee simple is sufficient to maintain action for injunction: 18 S. C., 551. Record of deed may be introduced on proof of loss of original: 2 Rich., 22; 38 S. C., 397. Hxecution and record presumes delivery: Rice Eq., 256; 19 S. C., 216; 10 Rich. Eq., 219; 52 S. C., 472.</p>

<p>Before Krugh, J., Anderson, February term, 1908.</p> <p>Action by Bertha Puryear against G. W. Ould. From judgment for plaintiff, defendant appeals.</p> <p>cite: Any sufficient cause zvill justify a discharge: 2 Cyc.. 1002; Pars. Law of Con., 526; 4 McC., 246, 248; 17 S. C., 480'.</p> <p>No citations.</p>

<p>I. Lanelori) and Tenant — Mortgages.—Proof here shows that relation of mortgagor and mortgagee once existed but that it had been terminated by mortgagee surrendering his bond for title and executing a rent note, and magistrate had the right to eject him as tenant holding over.</p> <p>2. Magistrate — Appeal-—Jurisdiction.—Where i;he facts are undisputed, a conclusion by the Circuit Court, on appeal from magistrate, is one of law and may be reversed by this Court.</p>

<p>Before Hydrick, J., Anderson, October term, 1907.</p> <p>Action by Davis Brothers against Blue Ridge Railway Company and Southern Railway Company. Prom' judgment for plaintiffs, defendants appeal.</p> <p>cite: There being no evidence of waiver, that issue should not have been sent to jury: 78 S. C., 78, 395. Value of mules was limited by contract, and no recovery should have been permitted for more: 79 S. C., 55; 39 S. C., 55.</p> <p>cite: Parol evidence as to route does not vary contract: 72 S. C., 364; 66 S. C., 68. Opinion evidence as to value of animals was competent here: 75 S. C., 34; Hutch, oil Car., 913; 58 S. C., 350; 13 Ency., 477; 79 S. C., 333. Witness may state a transaction if he remembers independently of his books: 58 S. C., 350; 17 Cyc., 474, 481. Under special contract burden is on carrier to show loss did not occur from his negligence: 56 S. C., 153; Elliott on R. R., 3403; 16 Am. R., 733; 78 Am. St. R., 686. Carrier zmived right to demand notice of claim for damages before removal of stock: 36 S. E. R., 348; 34 S. E. R., 704. Defect in proof before motion for nonsuit may be cured by defendant afterwards offering the proof: 63 S- C., 567; 68 S. C., 19. If loss occurs from negligence of carrier, stipulation as to value does not apply: 56 S. C., 153.</p>

<p>Before Gage, J., Charleston, February, 1908.</p> <p>Action by Charleston Light and Power Company against Lloyd Laundry and Shirt Manufacturing Company. From judgment for plaintiff, defendant appeals.</p> <p>No citations.</p> <p>No citations.</p>

Before Hydrick, J., Anderson, June term, 1907. Action by C. P. Sullivan against City of Anderson. From judgment for plaintiff, defendant appeals. cites: Loss for care and keep of the horse is not admissible here: 51 S. C., 4S4. Plaintiff did not show his load did not exceed ordinary weight: 58 S. C., 417. Driver was guilty of contributory negligence: 58 S. C., 418. cites: Burden of showing zvant of negligence is not on plaintiff: 54 S. C., 509; 58 S. C., 417.

Before Hydrick, J., Greenville, July, 1907. Action by Contos & Metracas against Jamison & Morris. From judgment for defendants, plaintiffs appeal. cite: As to the liability of joint tort feasors: 6 Thomp. on Neg., par. 7435; Pom. Code Rem., sec. 208; 16 E. R. A., 331; 33 E. R. A., 50; 44 E. R. A., 484; 42 S. E., 818. Liability of landlord to tenant: 24 Ency., 414; 18 Ency., 224; 1 Thomp., sec. 1131. cite: Opinion as to safety of wall proper: 69 S. C., 104.

<p>Before Memminger, J., Berkeley, February, 1908.</p> <p>Action by Henrietta M. Rivers against Atlantic Coast Lumber Corporation, Frances D. McCay, Ella Kinard and Annie Andrews. From- Circuit decree, defendant, Atlantic Coast Lumber Corporation, appeals.</p> <p>Mr. Davis cites: Timber should have been set apart to appellant in kind: Freeman on C. & P., secs. 424, 537; 2 Strob. Eq., 145; 24 S. C., 594; 4 Pom. Eq., sec. 1390; 21 Ency., 1199; 93 Ala., 85; 101 Ala., 183; 2 Ind. Eq., 607; 2 Jones Eq., 66; 69 N. C., 522; 49 Conn., 517; 11 Heisk., 669; 26 Md., 23; 3 So., 581; 75 Miss., 667; 8 Cow., 361; 37 W. Va., 143; 21 Ency., 1202. Timber should have been sold separately: 12 Rich., 314; 2 Strob. Eq., 145; Freeman on C. & P., secs. 436, 537; 62 S. C., 482.</p> <p>No argument furnished Reporter.</p>

Before Míímminger, J., Barnwell, January, 1908. Action by C. S. Buist, in his own behalf and on hebalf of all other creditors, against Geo. W. Williams et al., as stockholders of the Merchants’ and Planters’ Bank of Black-ville. Fromi judgment for plaintiffs, defendants appeal. Messrs. Smythe, Lee & Frost cite: The amendment of the complaint by substituting a new party plaintiff was error: Code of Proc., 193, 194; 1 Ency.

<p>Before Gage, J., Charleston, January, 1908.</p> <p>Action by Edward Bulcken and John Wohltman against D. Rohde, the Bank of Charleston, the Royal Bag and Yarn Manufacturing Company -and Mrs. A. R. Rohde. Erom Circuit decree, Mrs. Rohde 'appeals;</p> <p>Messrs. Legare & Holman cite: Acknowledgment by partners in writing saves bar of statute: 2 Bay, 533; 15 Am. Dec.,. 209; 15 E. R. A., 656. Bntry on books of copartnership in favor of debtor is an acknwledgment preventing the bar of the statute: 52 L. R. A., 561.</p> <p>cite: The acknowledgment must be in writing and signed by the party to be charged: Sec. 131, Code of Proc.; 21 S. C., 600; 38 S. C., 300; 51 S. C., 134; 52 S. C., 371; 61 S. C., 393, and must be to the debtor: 112 U. S., 161; 19 Ency., 316. Retirement of firm member operates as a dissolution: 22 Ency., 206; 112 111., 493; 45 Cal., 133; 5 Gill Md., 359 ; 113 Mich., 599; 96 Mo., 501; 38 S. W. R., 534.</p>

<p>1. Trustee — Accounting—Reai. Property. — One taking legal title to land to mortgage and pay from rents the debts of grantor and then to reconvey takes the land as trustee and is liable for rents and profits. As such trustee the grantee here is held to account, under facts here, for value of rent cotton at time received by him, and failing to show the actual rent value of so much of the land as he cultivated, he is charged with a reasonable rental value of what he cultivated. He is not entitled to credit for loss in furnishing mules and supplies to his tenants on the land. In absence of amount assessed by jury for extraordinary services, he can only be allowed five per cent. But this conclusion does not prevent trustee froril suing for extra compensation or having same assessed by jury herein.</p> <p>2. Usury. — The holder of the equitable title to land may set up usury under our statute in foreclosure of mortgage given by one holding the legal title. Here the transaction between the holder of the legal title and the defendant building and loan association held to be usurious and the mortgage debt overpaid.</p>

Before Gage, J., Greenwood, March, 1908. Action by Greenwood Drug Company against Bromonia Company. From judgment for defendant, plaintiff appeals. Messrs.

<p>Before Prince, J., Kershaw, spring term, 1907.</p> <p>Action 'by W. J. Hall against Northwestern Railroad Company of South ■Carolina. From judgment for plaintiff, defendant appeals.</p> <p>Messrs. Lee & Moise cite: As to assumption of risks: 77 S. C., 328; 184 N. Y., 148; Gadsden v. Catawba Power Co.; 78 S. C., 374, 472; 72 S. C„ 389; 16 S. C., 203; 44 S. C., 315; 55 S. C., 483; 58 S. C., 491; 54 S, C., 553; 69 S. C., 480; 74 S. C., 489; 72 S. C„ 237, 264. If plaintiff assumed a risk, with knowledge of the same, he cannot recover: 61 S. €., 478; 66 S. C„ 211, 302. New trial should be granted where the jwry disregards the instructions of the Judge: 68 S, C., 523; 19 S. C., 489; 16 S. C., 14. Judge may grant a new trial for excessive damages: 51 S. C., 395; but has no power to couple it with onerous conditions: 131 U. S., 22; 124 U. S., 510; 130 U. S., 69; 37 Mo. App., 517; 46 N. Y. Sup. Ct., 76; 8 Wend., 47; 81 Cal. R., 370; 48 Wis., 375.</p> <p>Messrs. Clark & von Tresckow cite: Where a servant knows of a defect, but assumes the risk, he cannot recover: 72 S. C., 346; 21 S. C., 548; 55 S. C„ 101; 72 S. C., 234-65; 76 Mich., 400; 14 S. W. R., 242; 65 N. W. R., 550; 33 Kan., 660,- 83 Va., 640; 88 Ga., 225; Pierce on Railroads, 379; 72 S. C., 346. Is there any difference between assumption of risks and contributory negligence, and is a charge applicable to the one applicable to the other? 61 S. C., 478; 72 S. C., 346; 21 S. C., 547; 55 S. C., 101, 453; 49 E. R. A., 51; 30 N. E., 366; 58 Mo. App., 281; 57 111. App., 56; 17 Atl., 491; 32 Atl., 965; 37 Am. R., 684; 84 Ind., 50; 27 S. W., 825; 11 111. App., 104; 26 L. T. N. S., 851; 3 N. W., 43; 15 S. W., 895; 2 S. W., 595; 37 N. E., 365; 32 Atl., 965; 1 111. App., 517; 35 N. E., 117; 47 N. E., 214; 33 N. W., 908; 21 S. W., 706; 26 111 App., 356; 23 S. W., 642; 18 S. W., 609; 28 N. W., 56; 24 Atl., 487; 41 N. Yi Supp., 633; 51 N. Y. Supp., 209; 17 S- E., 386; 27 S. W., 8.25. Circuit Judge has no power to impose onerous burdens in granting a new trial nisi: 54 S. C., 234; 81 Cal., 370; 37 Mo. App., 517; 48 Wis,, 375.</p> <p>cite: Proximate cause is or jury: 25 S. C, 128; 62 S. C, 135. Jury must say if servant assumed risks by remaining at Ids employment after discovering defect in machinery: 66 S. C., 217; 55 S. C, 101; 52 S. C„ 100'; 48 S. C, 379; 18 S. C, 281; 8 Allen, 441; 51 S. C, 233; 50 S. C„ 362; 21 S. C, 547; 66 S. C, 487; 62 S. C, 475; 68 S. C., 69; 60 S. C, 17; 66 S. C, 317; 72 S. C, 80; 75 S, C, 303; Con,, art. IX, sec. 15; 68 S. C., 494; 71 S. C, 79; 75 S. C, 150; 89 Mo-, 600; 76 Pa., St, 389. Whether plaintiff was negligent was for jury: 20 Ency, 149, 150; 85 Va, 319; 133 N. Y, 575. Contributory negligence cannot be imputed to a servant remaining at his post to protect the lives of others: 20 Ency, 151-1; 7 Ency, 394-5-6; 143 111, 258; 32 Am, R, 796; 45 Kan,, 256; 46 Am. R„ 173; 58 Am. R.', 463; 33 Am. St. R, 690; 61 Ga, 279; 29 Am. St. R, 553; 54 Am. R, 1; 132 Ind, 199; 50 Wis, 384; 85 Va, 319. Unlarging a request does not amount to refusing it: 75 S. C, 390: Conditions imposed by Judge on order granting nezv trial nisi do not make the order void: 4 Rich, 1; 23 Pa. St, 138; 54 Pac, 988; 75 N. W, 545; 52 Neb, 553; 41 Mich, 31; 104 Cal, 501; 99 N. W, 630; Graham and' Waterman on- New Trials. 603; 4 Ala, 317; 75 Pa. St, 1072.</p>

Before Klugh, J., Sumter, April, 1907. Action by H. Spurgeon Kolb against Southern Railway. From judgment in favor of plaintiff, he appeals. cites: Notice at the terminal point is sufficient, and plaintiff is entitled to damages for negligence after notice: 76 S. C., 342. cites: Liability of carrier for delay is that naturally arising from breach of contract: 71 S. C., 82, 211; 73 S. C„ 264; 74 S. C., 286; 75 S. C., 58, 351; 77 S. C., 182'. As to special damages: 3 Hutch.

Before Watts, J., Union, September, 1907. Motion by Sara Ida Knight, in re Sara Ida Knight against Union Manufacturing and Power Company, for leave to file supplemental complaint. From order granting the motion, defendant appeals. cite: The Court erred in not permitting defendant to advise it of its rights and equities: 33 S. C., 175; 2 Wall., 177; 2 Strob.

Before Gary, J., Abbeville, October term, 1907. Action, by J. C. Stouffer against A. M. Erwin.

Before Watts, J., Spartanburg, October term, 1907. Action by R. B. Mason against Apalache Mills. From judgment for plaintiff, defendant appeals. Messrs. John Gary Evans and Haynsworth, Patterson & Blythe cite: Did defendant exceed its legal rights? 28 Ency., 957; 70 L. R. A. (N. S.), 460; 13 Gray, 442; 61 A. D., 468; 60 S. C., 254; 79 S. C., 351; 85 A. St. R., 725; 98 Mass., 574; 52 N. H., 86; 66 Ga., 71; 78 Ga., 386; 1 Rich., 444.

<p>Before Prince, J., Richland, May, 1907.</p> <p>Action by Joseph Jackson, guardian, against Southern Cotton Oil Company. From judgment for plaintiff, defendant appeals.</p> <p>Mr. Hyde cites: The amendment to the complaint changed substantially the claim of the plaintiff and case should have been withdrawn from jury: 51 S. C., 412; 55 S. C.; 90; 13 S. C., 397, 491; 16 S. C., 231; 24 S- C., 430; ■ 39 S. C., 216. Order granting new trial nisi upon conditions is void: Code 1902, 2734; 4 Rich., 2; 12 S. C., 46; 12 Rich., 138; 8 Rich., 287; 5 Rich., 295; 2 Rich., 507; Harp., 83; 12 Pick., 199; 4 T. R., 659; 3 Mason, 102; 97 Mass., 208; 57 S. C., 395 ; 61 S. C., 251.</p> <p>cites: Judge properly offered defendant to amend its answer if it desired: 4 Strob., 61; 21 S. C., 327; Booth v. Langley, 51 S. C.,; 55 S. C., 90; 68 S. C., 403; 24 S- C., 430. Discretion of trial Judge in granting new trials nisi may be extended to imposing conditions: 4 Rich., 1; 76 Pac., 11; 206 Pa., 479; 54 Pac., 988; 64 Pac., 397; 75 N. W., 545; 52 Ala., 489; 104 Cal., 501; 4 Ala., 317; 99 N. W., 630.</p>

<p>1. Railroads — Communicated Fires — Negligence.—The complaint in this action properly held to state a cause of action for destruction of property on its right of way by-negligence at common law, but if it be held to state a cause of action under the statute, under the evidence here tending to show plaintiff had no notice of lease, that the house was on the right of way, that defendant’s agent knew plaintiff had used the house to store seed in and to ship them from and at' time of fire plaintiff had paid to defendant a guarantee-for a car to ship these seed in, recovery could have been had under the statute. German American Insurance Co. v. Southern Ry., 77 S. C., 467, distinguished from this.</p> <p>2. Ibid. — Ibid.—Communication of fire by an engine is sufficient to raise presumption of negligence. Here the evidence tending to show defendant ran its passenger train through a town on a windy night at a high rate of speed, the engine emitting sparks on an up-grade by the adjoining building, which was discovered on fire soon after the train passed, is sufficient for jury to infer negligence.</p>

Before Hydrick, J., Colleton, March, 1908. Action by Emily Taylor against Atlantic Coast Line Railroad Company.