Volume 82 — South Carolina Reports

<p>1. Judgment op Supreme Court. — In actions begun before adoption of Rule XXVII upon reversal of Circuit Judge in refusing to direct a verdict and to grant a new trial, the effect is to grant a new trial on circuit.</p> <p>2. Amending Pleadings — Cause op Action. — After case has been remanded for new trial, the plaintiff may have leave, under sec. 194 of Code of Procedure, if in furtherance of justice, to amend his complaint so as to state a new cause of action arising out of the same transactions stated in the first complaint.</p>

Before Gage, J., Barnwell, February, 1907. Two actions: (1) by Mattie C. Weathersbee et al. against M. F. Weathersbee et al.; (2) Annie E. Weathersbee et al. against M. F. Weathersbee et al. From Circuit decree, both plaintiffs appeal.

<p>1. Under 24 Stat., 665, the Attorney-General has the right to discontinue this proceeding.</p> <p>2. Discontinuance — Discretion.—The rule formerly applied in equity cases, that a cause could only be discontinued after issue joined within discretion of trial Judge, when discontinuance would not work prejudice to the defendant applies to law cases. Here the Judge committed error in granting the motion of discontinuance on ground that Attorney-General had the right to do so without considering the reasons presented by defendant against continuance.</p>

Petition in the original jurisdiction of this Court by J. Frank Fooshe against J. E. McDonald, county chairman of the Democratic party of Fairfield county, for writ of mandamus requiring the respondent to place the name of petitioner on the county ticket to be voted in the general primary election of 1908 as a candidate for county supervisor.

Before Watts, J., Laurens, Spring term, 1907. Action by Columbia, Newberry and Laurens Railroad Company against Laurens Cotton Mills.

Before Gage, J., Greenwood, April, 1908. Action by George W. Hughes against Southern Railway Company. From order of nonsuit, plaintiff appeals. cite: Failure to give the statutory signal for a crossing was negligence: 25 S. C., 66; 68 S. C., 458; 53 S. C., 124; 41 S. C., 1; 47 S. C., 375; 72 S. C., 394; 78 S. C., 363. Whether this was the proximate cause of the injury is for the jury: 54 S. C., 503; 62 S. C., 136; 2 Thomp. on Neg., sec. 1926.

Before Memminger, J., Bamberg, Fall Term, 1907. Action by John F. Folk against Benjamin Graham. From judgment for plaintiff, defendant appeals. cite: As to the construction of a deed: 1 McM., 462; 19 Johns., 97; 3 Strob., 203; 1 Bail., 128; 8 Rich. L., 328. No argument furnished Reporter.

Before Prince, J., Chester, November term, 1906. Action by William R. Douglass against Southern Railway Company and W. A. Stack. Prom judgment for plaintiff, defendants appeal. Mr. McDonald cites: Under common law no rate of speed is negligence per se: 8 Ency.; 3 Ell. on R. R., sec. 1160; 3 Thomp. on Neg., sec. 16Or, 5 S. C., 211; 7 S. C., 402; 34 S. C., 451; 57 S. C., 211; 67 S. C., 367. Reciprocal duties of railroad and traveler at public crossing: 238 Fed.

Before Hydrick, J., Greenville, July term, 1907. Action by W. H. Johnson against Western Union Telegraph Company. From judgment for plaintiff, defendant appeals. cite: Evidence as to condition of plaintiff’s sister should not have been admitted, because the company had no notice of it: 73 S- C.. 218; 75 S- C., 182, 208, 5201; 76 S. C., 301.

Before Gage, J., Pickens, June, 1907. Indictment against R. R. Smalls for selling liquor in the town of Easley in violation of the town ordinance. Upon conviction by the mayor he appealed to the Court of General Sessions, which affirmed the judgment of the mayor. He, therefore, appealed to this Court. cite: Difference between executory and executed contracts: 24 Ency., 1045, 1050'j 112 Eed. R., 269; Benj. on Sales, 324; 3 Strob., 393.

Before Gage, J., Orangeburg, May, 1907. Action by Joseph H. Miller, trustee in bankruptcy of Charles R. Wroton, against Charles R. Wroton, Alice Alston Wroton et al. Prom Circuit decree, plaintiff appeals. Mr. Cherry cites: No consideration arising from children, and their part of deed void: 69 S. C., 373. Fraud may be inferred from facts and circumstances: 52 S. C., 179; 57 S. C., 110; 11 Ency., 192', 197. 198; 26 N. Y., 211; 11 Ency., 290¡; 2 Pom. Eq. Jur., 600; McM.

Before Wa4TS, J., Charleston, December, 1907. Action by Sarah M. Anderson et al. against A. H. Silcox and H. P. Spear, administrator of F. A. Silcox et al. From Circuit decree, plaintiffs appeal. cite: Relationship of guardian to estate is not of proñt: 13 Rich. Eq., 201; 9 Rich. Eq., 199. Extra compensation to guardian: 1 DeS-, 542'; 1 McC. Ch., 4; 4 DeS., 369; 6 Rich. Eq., 2; Perry on Trusts, 391; 39 S'. C., 252. Salary of bookkeeper: 2 McC. Ch., 43; Chev., 137, 143; 1 McC.

<p>Carrier — Freight—Penalty—Constitutional Law — Presumptions.—•</p> <p>From delivery by a carrier in tMs State of a part of an interstate shipment, without explanation of the loss of a part thereof, the loss is presumed to have occurred on the terminal carrier, and the application of the penal statute, 24 Stat., 81, to such case does not contravene the interstate commerce clause of the Federal Constitution.</p>

<p>Pleadings — Nuisance—Injunction.—Allegation that a nuisance is maintained at 83-85 Market street covers the second story of No. 83, reached by a stairway between the two, and numbered 83%, and Vincent Chicco enjoined from maintaining on said premises a place where alcoholic liquors and beverages are sold.</p>

<p>New Triad — Jurisdiction.—The Circuit Court has jurisdiction of a motion for a new trial on after-discovered evidence, notwithstanding the pendency of an appeal in this Court.</p>

<p>Petition in the original jurisdiction of this Court by Wm. H. Lyles and Archer A. Phlegar for writ of mandamus against R. M. McCown, Secretary of State.</p>

Before Gage, J., Anderson, July, 1907. Petition by the City of Anderson et al., in re F. W. Wagener & Co. against Brown Brothers. From Circuit decree, Beulah Brown appeals. ■ statement of facts. This is an appeal from an order dissolving a temporary-injunction against the sale of one-half interest in the tract of land containing twenty-seven acres, formerly belonging to G. Ernest Brown.

Petition in the original jurisdiction of this Court by A. J. Brown, J. J. Williams et al., for writ of mandamus against Hon. M. E. Ansel, Governor, to require him to order an election on the question of Woodberry Township, in Marion county, being annexed to Horry county, without first appointing a commission to ascertain and report to him as to the facts stated in the petition, and also as to whether all the requirements of the Constituion and laws of the State with…

<p>Nuisance — Injunction.—That the owner of a building in which an alleged nuisance is maintained by others has not participated in maintaining the nuisance or has not knowingly allowed it to be so used, does not make out a prima facie showing that the owner was permitting his property to be so used.</p>

<p>1. Evidence. — In an indictment against one for keeping a gaming house it is not error to admit evidence to the effect that he and others caught gambling with him were arrested, taken before the recorder and most of them plead guilty, these facts not being in controversy.</p> <p>2. Gambling — Keeping a Gambling House. — The fact that a person was caught gambling at one time in a house is to be taken into consideration with the other facts in determining if he be guilty of keeping a gaming house.</p> <p>3. Charge. — Illustration used in the charge to show how inference of keeping a gaming house may be inferred from the facts proved held not a charge on the facts.</p>

<p>Before Dantzrer, J., Sumter, April, 1908.</p> <p>Action by H. W. Baker against Atlantic Coast Line Railroad Company. From judgment for plaintiff, defendant appeals.</p> <p>Mr. Reynolds cites: On the point decided: 112 N. S., 331; 56 N. Y., 168; 1 Woods, 573; 69 111., 62; 39 S. C., 55; 75 S. C., 321; 79 S. C., 344; 74 Mo., 538; 18 Fed. R„ 318; 4 Fed. R„ 706; 6 Allen, 88; 61 111., 184; 90 Ala., 36; 112 Wis., 150; 90 Tenn., 17; 103 Ind., 121; 91 Ala., 340; 4 Ell. on R. R., 2336; 1 Hutch, on Carriers, sec. 427.</p> <p>cite: On point decided: 65 S. C„ 1; 66 S. C., 61; 69 S. C., 101; 61 S. C., 22; 73 S. C., 289; 65 S. C., 27; 71 S. C., 224; 73 S. C., 290; 6 Cyc., 403-4-5, 409, 416. Evidence of concealment is for jury: 77 S. C., 404; 65 S. C., 93; 73 S. C., 385.</p>

<p>Motion to dismiss appeal by respondents in J. W. Lawrence et al. against Charlotte Lawrence et al., defendants, who appeal from order refusing to submit issues to jury.</p>

Before Gags, J., Greenwood, February, 1908. Indictment against G. Wash Hunter for murder of Flbert F. Copeland. Defendant appeals from sentence on verdict of manslaughter. Court of General Sessions for Greenwood county had no jurisdiction of this case: Secs. 3 and 5, art. VI, Con.; sec. 1, art. XIV, Amd. Con. U. S.; sec. 1, arts. V and VI, Amd.

Before Gage, J., Laurens, January term, 1908. Indictment against Richard Súber for murder of Dave Hunter. From sentence on verdict of manslaughter, defendant appeals. cite: It is error to contradict a witness on an irrelevant issue: 30 Ency.; 1100, HO®; 33 S. C., 139, 35S; 43 S. C., 310 ;1 McC., 333; 49 Am. R., 794. Oral argument.

Before Klugh, J., Greenwood, June Term, 1908. Indictment against Lee Wilkes for burglary and larceny. From sentence on verdict of guilty, defendant'appeals. cites: When new trial should be granted: 73 S. C., 345; 60 S. E. R., 669; 81 S. C., 24. Oral argument.

From order of the Chief Justice staying trial of case of State v. W. F. Jones pending appeal of defendant from Circuit order refusing bail, State appeals.

Before Gary, J., Richland August, 1908. Two actions (1) by Anthony Dawkins and (2) by Mack Dawkins against Columbia Street Railway and Power Company and Atlantic Coast Dine Railroad Company. From order requiring defendant railroad company to amend its answer by making it more definite and certain, it appeals. cite: When is a motion to make more definite proper: Code of Proc., 181; Pom.

Before Prince, J., Bamberg, March, 1908. Action by C. W. Rentz against Southern Railway Company. Prom order overruling demurrer, defendant appeals. cites: Obstruction of natural zvat-er course is actionable; of surface water is not: 39 S. C., 473'; 54 S. C„ 343; 61 S. C., 550; 61 S. C., 554; 63 S. C., 18. There being no allegation of plaintiff’s right to use the ditch” as an outlet, presumption'is the zvater ponded was surface water: 61 S. C., '555.

Before Watts, J., Spartanburg. Action by Mary R. Brown against American Telephone and Telegraph Company. From judgment for plaintiff, defendant appeals. cites: Plaintiff is estopped by her grant: 78 S. C., 419; 9 S. C., 449; 69 S. C., 100. No recovery for punitive damages should have been permitted under proof: 1 Suth. on Dam., sec. 392; 1 Leg.

<p>Before Hydricic, J., Spartanburg, June, 1908.</p> <p>Tour cases by Muckenfuss Manufacturing Company against Charleston and Western Carolina Railway Company. From Circuit order, reversing judgment of Magistrate J. R. Coan, plaintiff appeals.</p> <p>cites: 81 S. C., 74.</p> <p>cites: Endlich on Interpretation of Stats., sec. 318.</p>

<p>Petition in the original jurisdiction of this Court by Hon. J. Fraser Lyon, Attorney-General, on behalf of the State, against the Columbia Water Power Company, the •Columbia Electric Street Railway, Light and Power Company, and the City of Columbia, to enjoin the City of Columbia from building a bridge across the Columbia Canal.</p>

<p>1. Claim and Delivery — Damages.—Although a plaintiff in claim and delivery may not have the right to recover the possession of property wrongfully seized by defendant because before suit the property had been taken from defendant by legal process, yet he would be entitled to recover damages for unlawful seizure.</p> <p>2. Appeal.- — A verdict against “defendant” in claim and delivery against two defendants is a mere clerical error, which should have been corrected by motion to make more definite, and upon failure to make such motion this Court will not consider on appeal if a judgment entered thereon against “defendants” is irregular.</p>

Before Prince, J., Clarendon, December, 1907. Action by Helen Tindal et al. against Richard A. Sublett, in his own right and as executor and trustee, and Laura A. Sublett. From Circuit decree, defendants appeal. Messrs. Purdy & O’Bryan and R. J. Bland cite: Degree of soundness of mind necessary to make a valid conveyance: 4 Iv., 443; 64 S. C., 256.

Before Hydrick, J., Anderson, April, 1908. Action by Henry Calvin Gambrell et al. against Lena Gambrell, as executrix of John N. Gambrell and in her own right et al. The following is the Circuit decree: “John N. Gambrell died October 15, 1905. He was twice married. By his first wife he had four children, who are the plaintiffs. By his second wife he had two children, wh§, with his widow, are the defendants.

Before Prince, J., Richland, May, 1907. Action by James Mahoney against Southern Railway— Carolina Division. From judgment for plaintiff, defendant appeals. cite: Adverse possession by tenants, with intervals betzveen occupations: 6 R., 67; 25 S. C., 254; 19 Pa. St., 265; McM. Eq., 35. By possession in one,place: 1 Ency., 834, 835, 865; Sedg. & Waite on-Trial of Title to Land., sec. 770; Bus. on Lim. and Adverse Pos., sec. 251; Wood on Lim. of Actions, sec. 267; 25 Pa.

<p>Master and Servant — Fellow-Servants—Neolioence.—There being evidence in this case tending to show that the proper way to pile sacks of meal was to “tie” them, and that the master piled them in this case differently, and that plaintiff was injured by the falling of the meal on him as his duties caused him to pass the pile, there was evidence for the jury on the issue whether the injury was caused by failure of master to furnish a safe place to work or the negligence of fellow-servants.</p>

Before Watts, J., Marlboro, June, 1908. Action by Mary B. Wiliams against R. C. Newton, as trustee and executor of the will of Frank Williams, Frank Quick and William Williams. From Circuit order defendants appeal. cite: Two causes of action here improperly united: Code 1902, 2386, 2474; 4 Dess., 143; 45- S'. C., 651; Pom. Code Rem., 453. Tests for determining character of actions: Code of Proc., 163; Pom. Code Rem., sec. 580'; 1 Abbott’s Trial Brief, 739; 24 S. C., 44.

<p>Petition in the original jurisdiction of this State by Oliver C. Hollis for writ of mandamus against State Board of Medical Examiners.</p>

Before DbVorE, J., Lexington, June, 1998. Action by Berley & Kyzer against Columbia, Newberry and Laurens Railroad Company. From Circuit order affirming judgment of Magistrate G. A. Derrick, defendant appeals. Mr. Craig cites: Injured party must minimize damages: 69 S. C., 539 ; 75 S'. C., 361; 76 S'. C., 305. Consignee may not abandon freight and demand value: 38 S. C., 89. Claims are payable at office of destination: 73 S. C., 71; 113 Mass., 320.

Before Keugi-i, J., Greenville, March, 1908. Action by C. E. Cooke against Paris Mountain Water Company and American Pipe Manufacturing Company. Erom order overruling demurrer, defendants appeal. cite: 19 S. C., 412; 58 S'. C., 413; 30' Ency., 430-, and cases cited in note; 15 L. R. A., 375; 1 Farnham on Waters, 842-8; 6 E. R. A. (N. S.), 429; 33 E. R. A., 59; 215 Pa. St., 275. cites: 29 Cyc., 426; 20 Cyc., 1159, 1160'; 62 S'.

<p>Before Prince;, J., Sumter, November, 1907.</p> <p>Action by L. W. DesChamps against Atlantic Coast Line Railroad Company. Prom judgment for plaintiff, defendant appeals.</p> <p>Mr. Reynolds cites: As to refusal of continuance: 50' S'. C., 403; 68 S. C., 26.; 18 S. E., 953; 60 S- C., 293; 10 L- R. A., 749. Liability of carrier after delivery of freight: 50 S. C., 129.</p> <p>cites: Liability of carrier: 76 S. C., 13: 77 S. C., 76.</p>

Before Waitts, J., York, April, 1908. Action by Hasten Furniture Company against Southern Railway, before Magistrate T. C. Beckham From Circuit order reversing magistrate judgment, plaintiffs appeal. cite: Motion to make complaint more deñnite cannot be made in magistrate’s court: Code of Proc., 88, sub. 5, 6-, 15, 181; Title I, II, III, V; Rule XX, C. C. Defendant not entitled to continuance as right: Code Proc., 88, sub. 6, 7, 11; 56 S'.

<p>Before Wilson, J., Chester, November, 1907.</p> <p>Action by Patience A. Mills against Southern Railway Company. Prom judgment for plaintiff, defendant appeals.</p> <p>Mr. McDonald cites : Notice must be given at time of shipment: 77 S. C., 182; 71 S. C., 85, 211; 73 S. C., 264; 74 S'. C., 286; 75 S. C., 354; 76 S. C., 342; 77 S. C., 185; 79 S. C., 155.</p> <p>cites: Notice before shipment to any agent of the carrier is sufficient: 1 Hutch, on Car., 118; 76 S. C., 176; 77 S. C., 216, 78; 76 S. C., 338; 71 S. C., 86; 70 S. C., 6. Not necessary for owner of bill of lading to prove injury from delay: 77 S. C., 62.</p>

Before Klugh, ]., Greenville, March term, 1908. Action by Paul Mims against Western Union Telegraph Company. From judgment for plaintiff, defendant appeals. Messrs. McCullough and Evans cite: Memoranda evidence improperly admitted: Joyce on Elec. E-, Par. 1039. Agent in writing message was agent of sender: 27 Ency., 1033 ; 64 Tex., 220>; 63 Tex., 668; 90 S. W., 610; 74 Am.

Before Memminger, J., Charleston, June, 1908. Action by J. W. Griffith & Bro. against Atlantic Coast Line R. R. Co. From judgment for defendants, plaintiffs appeal. Messrs. Legare, Holman & Baker, cite: The law laid down in DanneFs case was not changed by the stock law: 20 S. C., 249; 26 S. C., 49.

<p>Before MrmmingSr, J., Clarendon, October, 1907.</p> <p>Action by Sam’l W. Griffin against Joseph D. Griffin, Wm. H. Griffin, Richard M. Griffin, Lawrence Griffin and David Levi and Abe Levi, executors of Moses Levi. From Circuit decree, defendant, Joseph D. Griffin, appeals.</p> <p>cites: Subrogation: 18 S. C., 131; 58 S. C., 392; 19 S. E., 669 ; Sheldon on Sub., secs. 31, 34; 2i Jones on Mtgs., sec. 1902; 24 Ency., 1 ed., 261; 59 la., 686; 37 U. S„ 11; 41 Am. D., 226; 24 Ind., 267.</p>

Before Gage, J., Lancaster, June, 1908. Action by Howell H. Shute against Wm. H. Shute, John Shute and Joseph D. Shute. The following is the Circuit decree: “The primary issue involved here is this: “Did the plaintiff intend the deed in controversy to be delivered upon its signing, so as to convey the fee out of 'him and into the defendants ? “At the outset the defendants object to, as incompetent, any parol testimony to prove the negative of that issue.

Before DanTzlER J., Charleston, December, 1904. Action by Thos. L. Grant against City Council of Charleston. Erom order granting temporary injunction, plaintiff appeals. cite: Temporary injunction: 77 S. C., 81; 75 S. C., 221; 69 S. C., 554. Restraining order against plaintiff is beyond jurisdiction: 75 S. C., 235 ; and is a trial on merits: 62 S-. C., 220'; 48 S'- C., 315; 60' S. C., 559; 77 S. C, 81, 416; 67' S'. C'., 84; 9 S'. C., 303.

Before George Johnstone, special Judge, Richland, November term, 1907. Action by Mary G. Mayrant against City of Columbia. From judgment for plaintiff, defendant appeals. cite: Measure of damages is not cost of filling in lot: 38 S-. C.,_ 289; Harp. E-, 276; 51 S. C., 485; 2 Speer., 271; 46 R. R. A., 636. Defendant not liable unless plaintiff shows negligence: 77 S. C., 285; 40' S. C., 342; 73 S. C„ 254; 81 S. C., 112; 15 Rich. R., 201; 9 Tex. Civ.

<p>1. Seduction — Evidence Corroborative. — In order to establish the crime of seduction under 24 Stat., 937, State must prove by evidence corroborating that of prosecutrix that she was induced to have sexual intercourse with the accused by means of his deception and promise of marriage, which was not done in this case.</p> <p>2. Ibid. — Phesumptiost.—Under 24 Stat., 937, in prosecution for seduction, the cliastitiy of the woman is presumed, and .the burden of showing her “lewd and unchaste” is on defendant.</p>

<p>Before Gary, J., Kershaw, July, 1908.</p> <p>Action in ejectment by C. N. English against J. D. Mc-Dowall, before Magistrate H. M. Fincher. From Circuit order reversing judgment of magistrate, plaintiff appeals.</p>

Before Gary, J., Kershaw, August, 1908. Action by Anna Calhoun Ancrum against Camden Water, Right and Ice Company.

<p>Before Hydrick, J., Pickens, September term, 1908.</p> <p>Action by Plumer Hallums against Southern Railway Company. Prom judgment for plaintiff, defendant appeals.</p> <p>cites: On constitutional question: 88 Miss., 314; 67 N. W. R., 804; 8 P. R. A., 419; 36 la., 52; 12 N. W. R., 763; 78 N. W. R., 800; 59 Am. R., 456; 10 Am. & Eng. Ann. Cas., 1113 ; 56 S. C., 446; 51 S. C., 96; 39 S. C., 510; 71 S. C., 53.</p> <p>cite: No negligence on part of plaintiff: 5b S. C., 454. Case falls under art. IX, sec. 15, Con.: 56 S, C., 454; 87 S. C„ 199, 377; 58 S. C., 144.</p>

<p>Before Wilson, J., Chester, November, 1907.</p> <p>Action by the Cousar Mercantile Company against Southern Railway. From judgment for plaintiff, defendant appeals.</p> <p>Mr. McDonald cites: Goods having only been delayed, plaintiff not entitled to penalty remedy: 5 Rich., 46; 7 Rich., 190; 71 S. C., 337; 75 S. C., 38; 79 S. C., 297; 76 S. C., 338; 72 S. C., 483; 75 S. C., 20. Consignee should accept goods and sue for damage caused by delay: 2 Hutch, on Car., sec. 651; 3 Hutch, on Car., sec. 1365; Moore on Car., 197-8; 5 Ency., 220-1; 5 Rich., 56; 7 Rich., 190; 79 S. C., 300.</p> <p>cites: Statute must be strictly construed: 78 S. C., 56; 72 S. C., 486. Carrier is liable by whatever means goods were lost to consignee: 79 S. C., 200; 22 Stat., 443.</p>

<p>Before Prince, J., Greenville, June term, 1908.</p> <p>Action by Elizabeth M. Sevier against Southern Ry. From judgment for plaintiff, defendant appeals.</p> <p>cite: Judge should have directed verdict for defendant: 81 S. C., 317; 45 S. C., 278 ; 57 S. C., 433; 78 S. C., 384. Only inference from testimony was that plaintiff zvas guilty of contributory negligence: 77 S. C., 377; 56 S. C., 91; 66 S. C., 563; 78 S. C., 568; 79 S. C., 177; 80 S. C., 1; 46 S. E. R., 12; 5 Ency., 667. Amendment to complaint: 80 S. C., 219.</p> <p>cites: Amendment zvas not error: 72 S. C., 474; 51 S. C., 412; 17 S. C., 589; 33 S. C., 562; 55 N. Y., 319; 37 la., 107; 35 la., 589; Pom. on Rem. Rights, sec. 555; 9 S. C., 330; 81 S. C., 264, 564. Negligence per se in carrier not to stop train for passenger to alight: 77 S. C., 371; 58 S. C., 223; 53 S. C., 120. Plaintiff not guilty of contributory negligence: 66 S- C., 528; 72 S. C., 137; 62 S. C., 143; 77 S. C., 341; 79 S. C., 176; 20 E. R. A., 853; 14 E. R. A., 743; 54 E. R. A., 582.</p>

<p>Slander. — A corporation is liable for slander of one of its employees by another in reference to a matter growing out of such contract relation, the matter being one within the duty of the slandering employee to adjust, whether the corporation subsequently ratified the slanderous act of its employee or not.</p>

Before Watts, J., Marlboro, June, 1908. Action by R. C. Goodwin against Atlantic Coast Line R. R. Co. and W. A. Frye. From judgment for plaintiff, defendant appeals. No argument furnished Reporter. cite: Duty to trespasser: 61 S. C., 559; 70' S'. C., 182. Signals for crossings near accident: 52 S. C., 325; 58 S'. C., 70; 8 Ency., 412; 10 Rich., 277; 57 S. C., 205; 56 S. C„ 218. Duty to licensee: 57 S- C., 243; 70 S. C., 192.

<p>Before Prince, J., Bamberg, Spring term, 1908.</p> <p>Action by Mike Fullerton against Atlantic Coast Line R. R. Co. From judgment for defendant, plaintiff appeals.</p> <p>Mr. Mayfield cites: 24 Stat., 671, relates only to delay: 81 S. , C., 169. No special damages can be recovered: 76 S. C., 239; 70 S. C., 16; 71 S. C., 82, 212; 75 S. C., 355; 79 S. C., 158. Pixing amount of damage at value at place of shipment is valid: 75 S. W., 782; 39 S. W., 958; 6 Cyc., 401; 39 S. C., 55; 79 S'. C., 158; 71 S. C„ 82, 211; 73 S. C., 264; 77 S. C., 182. Where vendor undertakes tó deliver at a certain place action for loss remains in him: 79 S. C., 158; 14 S- C., 116;.Elliott on R. R., sec. 1692; Benj. on Sabs., sec. 1040; Hale on Car., 547'; 6 Cyc. 511; 24 Ency., 1050 ; 26 Am. St. R., 441; 115 Am. St. R., 390; 40 R. R. A., 535; 27 Am. D., 516; Hutch, on Car., sec. 1319; 30 S. E-, 555. Settlement by carrier is bar to action: Hutch, on Car., secs. 1306, 1318, 1319, 1320, 36 S. E., 309; 30 S. E., 555; 112 Mass., 524; 49 N. Y., 188; 13 Barb., 57; 81 S. C., 159.</p>

<p>Parent and Chimb. — Small children under the facts in this case given for the present to the mother, both parents being held, under proof, morally fit to have the custody of them. The father being more able, financially, to support them, but having previously given them absolutely to the mother.</p>

<p>Before Keugh, J., Greenwood, June term, 1908.</p> <p>Indictment against Marsh Washington for murder. Prom sentence on verdict of guilty, defendant appeals.</p> <p>cites: 12 Ency. P. & P., 276, 312, 324; 15 Rich., 47, 12 S. E., 339, 1051; 12 Ark., 623; 48 Ea. Ann., 296; 90 Va., 785; 87 Va., 63, 11 S. C., 319; 1 Rich., 188.</p>

<p>Before Wilson, J., York, November term, 1907.</p> <p>Action by J. H. Sutton against Southern Railway Company and E. G. Whitlock. From judgment for plaintiff, defendant appeals.</p> <p>Mr. McDonald cites: No proof showing liability: 21 Ency., 457; 2 Cool on Torts, 1410-20; 59 L. R. A., 209; 33 S. C., 199; 45 S. C., 278; 57 S. C„ 433; 76 S. C., 557; 34 S. C., 452; 43 S. R., 378; 157 Fed., 547; 21 S. C., 466; 34 S. C., 450; 29 S. C., 318.</p> <p>Mr. Hart cites: All facts inferable from an allegation are included in it: 62 S. C., 40; 70 S. C., 277. Proof of a collision is proof of negligence: 70 S. C., 277. If allegations as to employee be stricken out a cause of action remains against carrier: 15 Fed. R., 588; 69 S. C., 275; 65 S. C., 447; 22 Wall., 350; 13 Pet., 190.</p>

Before Watts, J., York, February, 1908. Action by York Supply Company against Southern Railway Company in magistrate’s court. From Circuit order dismissing appeal from magistrate’s court without trial, defendant appeals. cites: Code of Proc., 366; 54 S. C., 346.

<p>1. Constitutional Law- — Townships—Sullivan’s Island — Special Laws — Cities and Towns. — The Act, 25 Stat., 280, repealing the charter of the town of Moultrieville and establishing a town.ship government for Sullivan’s Island as a township of Charleston county is not violative of section 34, article III of the Constitution prohibiting changing names of places and- incorporating cities or towns by special laws if such repeal affect merely the public government' of the municipality, but the act is permissible under section II of article VII. Sullivan’s Island as a township of Charleston county may be considered in a class by itself and the subject of special legislation.</p> <p>2. Townships — Sullivan’s Island. — The principle of self-government does not inhere in townships. The Legislature may ordain for Sullivan’s Island a system of township government by a board of two resident electors and three owners of residences appointive by the Governor.</p>

<p>1. Real Property — Adverse Possession.- — Twenty or ten years’ adverse possession may be acquired by tacking the possessions of ancestor and heir. Woodland is held adversely by gathering wood, straw and timber therefrom, if this be the ordinary use for which the land is fitted.</p> <p>2. Ibid. — Presumptions of Grant — Taxes.—Payment of taxes for a number of years tends to show the State has parted with its title to the lands.</p>

Before Gary, J., Richland, summer term, 1908. Action by Samuel Berley against Western Union Telegraph Company. From judgment for plaintiff, defendant appeals. cite: Master is not liable for negligence of fellow servants: 18 S. C., 262, 275; 22 S. C., 557; 28 S. C., 529; 39 S. C., 509; 70 S. C., 95; 71 S. C., 53; 72 S. C., 238; 61 S. C., 475 ; 71 S. C„ 56; 58 R. R. A., 508; 51 R. R. A., 513; 160 Mass., 152; 44 N. Y. Supp., 1; 86 Pa., 439; 34 N. E., 185.

<p>Before -, J., Richland, February term, 1908.</p> <p>Indictment against J. F. Lopez. From sentence on verdict of guilty, defendant appeals.</p> <p>Both oral arguments.</p>

Before Gary, J., Richland, May, 1908. Action by J. H. Faulk against Columbia, Newberry & Laurens Railroad Company. From judgment for plaintiff, defendant appeals. cite: Railroad commissioners have full power over rules and regulations: Code, 1902, 2091, 2098; 2 Ell. on R. R., secs. 675, 678, 682, 685. Such rules are binding within the State: Code, 1902, 2093, 2092, 2116, 2117, 2119.

<p>1. Evidence — Railroads.—A bill op lading issued to W. R. B. prop- ■ erly admitted to show shipment to A. G. B. on evidence tending to</p> <p>show shipper always addressed consignee as W- R. B.</p> <p>2. Carrier — Freight—Penalty—Damages.—Carrier is not liable to consignee for the value of goods and penalty under statute, 24 Stat., 81, where the goods are tendered after time limited by the statute for adjusting the loss or damage, even if carrier was negligent in tracing them. Consignee should have received the goods and sued, for difference in value between time they should have arrived and the time they were tendered and damages caused by delay. '</p>

<p>Before Gary, J., Spartanburg, March, 1908.</p> <p>Action by Amanda E. Foster against W. G. Bailey and T. E. Tucker. From judgment for plaintiff, defendants appeal.</p> <p>cite: Estoppel in pais need not be pleaded: 27 S. C., 235; 81 S. C., 332; 16 Cyc., 778. Evidence as to boundaries admissible: 13 Cyc., 628; 5 Cyc., 937, 940, 969, 971; 38 S. C., 501. Proof of boundaries: 59 S. C., 133; 82 S. C., 131. No additional grounds by respondent can be considered in jury case: 59 S. C., 498.</p> <p>cite: Estoppel can not be shown by contradicting deed: 69 S. C., 93; 27 S. C., 380; 81 S. C., 211. Evidence showing fraud not admissible in absence of allegation: 40 S. C., 101; 78 S. C., 486; 58 S. C., 59. Owner without notice can convey good title to one with notice: 23_S. C., 501; 6 Rich. Eq., 176; 13 Rich. Eq., 241. Acts done subsequent to transaction do not support estoppel: 16 Cyc., 741, 744; 57 S. C., 507; 42 S. C., 348. Permitting further evidence is within discretion of trial Judge: 57 S. C., 294.</p>

<p>1. Corporations — Receivers—Stockholders—Directors.—A stockholder of a corporation may sue the directors and receiver for an accounting for mismanagement of the corporate property without consent of the Court first had, if the suit is not intended to recover or affect assets in the control of the Court but to augment them for distribution, and Court may give permission after suit begun.</p> <p>2. Ibid. — Directors—Parties.—The liability of directors for the mismanagement of the corporate property is several as well as joint, and in such suit all directors or their legal representatives need not be made parties.</p>

Before Dantzu;r, J., Lexington, Summer Term, 1907, Indictment against S. W. Stockman for murder of Hampton Hartley. Frorii sentence on verdict, defendant appeals. Messrs. Graham & Sturkie cite: Rules of evidence in criminal cases: 12 S. C., 96. Opinion evidence: 59 S. C., 311; 19 S. C., 521; 25 S. C., 24; 32 S. C., 127. Self-defense: 13 S. C., 464; 29 S. C., 44; 66 S. C., 473. Defense of castle: 79 S. C., 149; 15 Sup. Ct., 962; 33 S. C., 124. Request not charged: 72 S'.

<p>Before Krugir, J., Spartanburg, October, 1908.</p> <p>Action by W. E. Rogers, executor, against H. W. Morrell, W. F. Gilbert, E. M. Gilbert and Hazel S. Gilbert. From Circuit order reversing judgment of probate court, defendant, H. W. Morrell, appeals.</p> <p>cite: 2 Hill CL, 41; 4 Fncy, 9; 113 Mass., 341; 162 Pa. St., 372; 37 N. J. Eq., 73; 155 .Mo., 314.</p> <p>cite: 5 Cyc., 684; 1 Hill, 152., 311; S Hill CL, 41; 10 Rich. Eq., 1; 12 S. C., 576; 1 Des., 237; Bail, 517; 29 S. C., 470.</p>

<p>1. Telegraph Companies — Negligence.—Under proof in this case, while there was shown to have been negligent delay in delivery of telegram, plaintiff by reason of such delay sustained no direct and proximáte damages, as there was a total failure of testimony tending to show the defendant had any knowledge that the telegram, which was plain and intelligible itself, meant something more than the natural import of its terms.</p> <p>2. Amending Pleadings. — Motion, after nonsuit granted, to amend complaint to make allegations conform to proof, should not be granted, when it involves striking out material allegations and inserting other and essential allegations.</p>

Before MemmingER, J., Charleston, April, 1908. Action by C. L- Farrell against Atlantic Coast Line R. R. Co. From circuit order remanding case to court of Magistrate J. W. Cummings for new trial, defendant appeals. cites: Complaint not sufficient: 81 S. C., 167; 76 S. C'., 173. oral argument.

<p>Before Gary, J., Richland, April, 1908.</p> <p>Action by Mary E. Lyles against J. M. Kinard and Watson & Tompkins. From order requiring plaintiff to make her complaint more definite, she appeals.</p> <p>cites: Plaintiff has cause of action against both defendants: 1 Ency., 1174; 65 N. H., 193. Only one cause of action is stated: Pom. R. & Rem., sec. 457; 53 S, C., 493; 53 S. C., 186; 60 S. C., 531; 73 S. C., 35; 39 Cyc., 1514; 11 How. Pr., 446. Merits are involved: 65 'S. C., 336.</p> <p>cites : If complaint states two causes of action, order is proper: 34 S. C., 43; 43 S. C., 334; 44 S. C., 64, 576; 53 S. C., 493. Notice need not state particulars: 51 S. C., 497; 48 S. C., 183.</p>

<p>Railroad Commissioners — Railroads—Constitutional Law. — The statutes, Code 1902, 2067, 2068, 2069, giving to the railroad commissioners supervision of railroads, is not unconstitutional in that it does not expressly provide for notice to and hearing of the railroads before action by the board, for the statutes contemplate the board will obey the constitutional mandate and give such notice and hearing; nor are the statutes unconstitutional in that they take the management of the railroad property away from the control of its owners.</p>

Before Wilson, J., Lexington, March, 1908. Action by W. M. Laird against Piedmont Mutual Insurance Company. From judgment for plaintiff, defendant appeals. cite: Statements in application are binding on insured: 71 S. C., 91; 61 S. C., 342. Soliciting agent is agent of insured in filling in application: 23 Cyc., 1436, 1444; 67 L. R. A., 705; 43 la., 46; 4 R. I., 141. cite: Position of agent and applicant: 81 S. C., 155.

Before Wieson, J., Lexington, June, 1908. Action by James C. Fort against First National Bank of Batesburg. From judgment for plaintiff, defendant appeals. Messrs. Bñrd & Dreher cite: Parol evidence of contents of check: 22 N. J. L-, 552; 10' Md., 234. Bank had no control of deposit: 78 $. C., 408. cite: Depositors may make express contract zvith bank: 77 S- C., 308.

<p>Before DantzuEr, J., Lexington, September, 1907.</p> <p>Action by A. W. Martin against Paul E. Hutto. The following is the circuit decree omitting the final judgment, which is set out in the opinion:</p> <p>“This case came up for hearing before me at the summer term of Court for Lexington county, on the 21st day of August, 1907, upon call of Calendar No. 2, upon the report of the testimony taken by Samuel B. George, Esq., special referee, and the pleadings in the case.</p> <p>“The only evidence before me is that submitted by the plaintiff, the defendant offering no testimony before the referee, although the defendant had due and legal notice of the time and place of taking said testimony.</p> <p>“This being a suit of the plaintiff against the defendant for an accounting of moneys collected by the defendant as agent for the plaintiff for the year 1903 and prior thereto ; and, to set aside the assignment of a certain lease and demise of plaintiff’s farm in Lexington county, known as the Blackville Road Plantation, upon the ground of fraud and failure of consideration; and also for an accounting and possession of one-half of all crops raised upon said plantation during the year 1904, which the defendant wrongfully and unlawfully withholds from said plaintiff and refuses to deliver same, or to pay the plaintiff the value thereof, but has fraudulently taken and detained same, together with the lease and demise of said premises, with the intent to defraud, harrass and cheat the plaintiff, and deprive the plaintiff of the benefit thereof; and for an order of arrest in this action, and an execution upon the judgment herein.</p> <p>“No order of arrest has yet been taken in the action, but from the facts of this case as found by me from the testimony submitted before the referee I am satisfied that the plaintiff is entitled to a ca sa, or execution against the person of the defendant as provided by secs. 200 and 308 of the Code of Civil Procedure of 1902.</p> <p>“I find from the evidence the following facts:</p> <p>1. “That the defendant, Paul E. Hutto, was at the times mentioned in the complaint, and still is, a resident of the town of Swansea, County of Lexington, and State of South Carolina.</p> <p>2. “That prior to and during the year 1903 the said Paul E. Hutto acted as the agent of the plaintiff, A. W. Martin, in making advances to and collecting rents from plaintiff’s tenants on plaintiff’s farm, situated in the county and State aforesaid, said farm being known as the Blackville Road Plantation, for which no accounting has been rendered.</p> <p>3. “That on or about May 16, 1904, the plaintiff and defendant entered into an agreement in writing, antedating said agreement the 23d day of December, 1907, whereby the plaintiff agreed to lease and demise the said farm, known as Blackville Road Plantation, to the defendant from the 23d day of December, 1903, until the 24th day of December, 1904, for agricultural purposes, for a yearly rental of one-half of all crops raised on said farm, and for the repayment of all advances of guano and supplies furnished in accordance with said contract. I find that the defendant, Paul E. Hutto, took charge of said farm under said agreement of lease for the year 1904, and the said defendant through his agents, servants and subtenants raised large crops of cotton,, corn, fodder, hay, potatoes and other crops on said farm during the year 1904, amounting in the aggregate in value to sixteen hundred and eighty and no-100 dollars, of which amount the plaintiff was. entitled to one-half on or before the 12th day of November, 1904.</p> <p>4. “I further find that the assignment on the back of said lease and demise from A. W. Martin to Paul E. Hutto, dated the 16th day of May, 1904, was given for the sole purpose of using said lease by Paul E. Hutto, as collateral security at some bank for the loan of two hundred dollars for the benefit of plaintiff, and that after securing said assignment for said purposes the defendant, Paul E. Hutto, failed and refused to- use said lease so assigned for the purposes for which it was assigned, and refused to return said lease to the plaintiff, but for the purpose of defrauding, harrassing and cheating the plaintiff, A. W. Martin, the defendant, Paul E. Hutto, wilfully, wrongfully, unlawfully and fraudulently kept said lease so assigned to him, for the purpose of defrauding the plaintiff of the use thereof and the benefits thereunder, and refused to use same for the purposes for which it was assigned, or return same to the plaintiff, although same was frequently demanded of him, and, therefore, I find that said assignment of said lease as aforesaid from A. W. Martin to Paul E. Hutto was fraudulently obtained, was totally without any consideration, and is therefore null and void.</p> <p>5. “I further find that the defendant has wrongfully, unlawfully and fraudulently failed and refused to turn over to the plaintiff his one-half of all crops raised upon said premises, during the year 1904, or to make a division of same, but has fraudulently converted same to his own use.</p> <p>6. “I further find that the defendant is due the plaintiff one-half of the value of said crops raised upon said farm during the year 1904, to wit: Eight hundred and forty and no-100 dollars, with interest on same since the 12th day of November, 1904, to date of this decree, amounting to one hundred and seventy-nine and 98-100 dollars; total, amount of principal and interest, one thousand nine and 98-100 dollars.</p> <p>7. “I further find that the defendant is due a credit of the difference between the amount due plaintiff for rents collected as agent of plaintiff and the amount due defendant by plaintiff, as shown by the statement of defendant to plaintiff exhibited in evidence as corrected by the evidence of plaintiff, the sum of two hundred forty-one and 84-100 dollars.</p> <p>“It is, therefore, ordered, adjudged and decreed : That the assignment of the lease and demise of A. W. Martin to Paul E. Hutto of the Blackville Road Plantation, said assignment being dated May 16, 1904, be and the same is hereby declared to be null and void, and the defendant, Paul E. Hutto, is hereby required to surrender said lease and demise so assigned to the clerk of this Court for cancellation of the assignment on the back of same, and to file same so can-celled with the record of this case.</p> <p>“It is further ordered, adjudged and decreed: That the plaintiff have, and is hereby given judgment against the defendant for the difference between the value of plaintiff’s portion of the.crops raised on the Blackville Road Plantation during the, year 1904, fraudulently taken, detained or disposed of by defendant, with interest thereon from the 12th day of November, 1904, to date of this decree, to wit, the aggregate sum of one thousand nine and 98-100 dollars, and the sum of two hundred forty-one and 84-100 dollars due defendant by plaintiff, the said difference for which judgment is given, amounting to seven hundred sixty-eight and 14-100' dollars and the costs of this action. * * * ”</p> <p>From this decree the defendant appeals.</p> <p>No argument furnished Reporter by either side.</p>

Before Hydrick, J., Oconee, November Term, 1907. Action by William V. Holden against Thomas E. Alexander.

Before Klugh, J., Richland, November term, 1907. Action by Clara Jones and her husband, Daniel Jones, against McCreery Land and Investment Company. From judgment for plaintiffs, they appeal. cite: Blection: 7 Ency. P. & P., 361; 73 S. C., 189. Demurrer, not election, remedy: Code of Proc., 165, 166, 60 S. E., 972; 73 S. C., 189; 65 S. C., 335; 66 S. C., 131; 66 S. C., 544.

Before Aldrich, J., Marion, spring term, 1908. Action by Max Pass and his wife, Theresa Pass, against Western Union Telegraph Company. Prom judgment for plaintiff, defendant appeals. Messrs. Fearons, Willcox & Willcox and Davis, cite: What plaintiff must show to recover: 73 S. C., 221; 70 S. C., 422; 72 S. C., 116; 71 S. C„ 30; 72 S. C., 290, 536; 63 S. C., 425; 70 S. C., 522, 539; 75 S. C., 54, 184, 208; 76 S. C., 301.

Before Shipp, J., Marion September, 1908. Action by J. N. Tenhet, against Atlantic Coast Line R. R. Co. From Circuit order affirming judgment of magistrate D. J. Oliver, defendant appeals. cite: Plaintiff must show receipt of goods: 5 Fncy., 353. If no delivery of freight is made, no presumption of receipt by carrier arises: 76 S. C„ 310; 6 Cyc., 490; 77 S. C., 317. Offer of compromise incompetent: 28 S. C., 160; 36 S. C., 69.

<p>1. Carrier — Bill op Lading. — A paper in form of the same effect as a bill of lading containing the words “as per conditions company’s bill of lading” is in effect a bill of lading, especially where so recognized by carrier’s agent.</p> <p>2. Evidence — Written Instruments — Secondary Evidence.. — A copy of a notice of special damages for delay in delivering freight, identified by carrier’s agent is admissible as evidence upon failure of carrier to produce original.</p> <p>3. Carrier — Bill op Lading — Indorsement.—Delivery of bill of lading by consignee to a third person without indorsement transfers title to the goods. But that the agent of carrier recognized the right of claimant to the goods and offered to pay him the value of the lost part is a recognition of liability of carrier to him for breach of contract of shipment.</p> <p>4. Ibid. — Freight—Special Damages. — In absence of negligence on part of carrier in attempting to trace and find freight, consignee cannot recover special damages for delay in transportation under notice given subsequent to date of shipment, but under such notice special damages may be recovered for delay in transporting a duplicate shipment.</p> <p>5. Ibid. — Ibid..—Ibid.—Measure of damages for delay in transporting freight with notice that vendee requires it for a special purpose stated in general terms.</p> <p>6. Ibid. — Damages for loss to the business of constructing a mill caused by delay in transporting machinery is the interest on the money invested in the work of construction and the wages of the laborers employed for construction reduced by the earnings which could have been secured by reasonable diligence from the employment of such laborers in other work.</p>

<p>Before Hydrick, J., Charleston, May, 1908.</p> <p>Action by Thomas H. Atherton, Jr., against Atlantic Coast Tine R. R. Co. Prom Circuit decree as to taxation of cost, defendant appeals.</p> <p>cites : Subpoena not necessary: 16 S. C., 58. Attendance of witnesses: 64 S. C., 197; 24 S. C., 257.</p> <p>cites: Subpoena necessary: 1 Bail., 190; 64 S, C, 199; 1 Bail., 542; 43 & C., 370. Materiality of witnesses: 2' Bail., 131; 2 Speer, 89; 2 Hill, 555.</p>

<p>Before Gagr, J., Colleton, November 'í'erm, 1907.</p> <p>Action by Mamie Blade against Atlantic Coast Line R. R. Co. From judgment for plaintiff, she appeals.</p> <p>cite: Damages for mental anguish caused by delay: 3 Wood on R. R., sec. 364; 59- L. R. A., 590'; 15- L. R. A., 347; 33 L. R. A., 347; 37 A. & E. R. R. Cas., 190; 44 Id., 303; 14 Id., 356-; 18 Id., 348; 33 Id., 613; 31 Id., 776; 36 Id., 316; 05 Id., 188; 01 Id., 379; 34 Id., 316; 34 S. C., 334; 35 S. C., 493, 475; 54 S. C., 498; 57 S. C., 305; 68 S. C., 98. Brror in withdrawing from jury wilfulness in tracing baggage: 58 S. C., 300; 09 S. C., 388; 65 S. C., 501 ; 65 S. C., 438. Charge as to limitation of liability was on facts: 53 S, C., 150; 61 S, C„ 563; 49 & C., 558; 47 S. C., 510; 68 & C., 160; 48 S, C., 136; 49 S. C., 481; 50 S. C., 470; 58 S. C., 330. Limitation of liability for negligence: 0 Rich., 386; 9 Rich., 301; 19 & C, 383; 06 S. C., 065; 56 S. C., 136; 74 S. C., 130; 39 S, G, 56; 55 S. C., 160. Passengers not bound by limitations on payment of full fare: 65 S. C., 517; 3 Ency., 555.</p> <p>Messrs. Willcox and Davis cite: Party cannot appeal from judgment in his favor: 73 S. C., 491; 61 S. C., 468;'50 S. C, 370; 63 S. C., 380; 70 S. C., 75; 73 S. C, 034; 54 S. C„ 303; 55 S. C., 336; 61 S. C., 404; 63 S. C., 559. No recovery for mental anguish without physical injury: 57 S. C., 335; 78 S. C., 556; 17 S. C., 66. No punitive damages here: 72 S'. C., 256; 5 S. C., 440; 65 S. C.,490; 72 & C., 419; 78 & C., 481, 419; 79 S. C., 209; 54 S. C., 505; 60 S. C., 67; 78 S. €., 556; 73 S. C., 523; 72 S. C., 116; 76 S. C., 301; 77 S. C„ 148; 78 S. C., 10i9. Duty of carrier to inquire if train stops at his destination: 4 Ell. on R. R., sec. 1593; 2 Hutch, on Car., sec. 1060'; 75 S. C., 355. Instruction responsive to testimony is proper whether issue is pleaded or not: 17 S. C., 477; 78 S, €., 537.</p>

Before Klugh, J., Greenville, January Term, 1908. Indictment against Thomas Lindsay and -Columbus Sims for murder of J. R. Moon. From sentence on verdict of guilty with recommendation to mercy, defendants appeal. cite: Declarations should have been received: 74 S. C., 498. Charge as to self-defense: 56 S. C., 398; 33 S. C., 132. oral argument.

<p>1. Contracts — Mortgages.—Where a grantor upon allegation that the consideration of a deed was to be the satisfaction of a mortgage due grantee by him on some land and some cash and that grantee breached the contract, and on this issue has the deed cancelled, he cannot after-wards set up such rescinded contract to defeat the mortgage which grantee was to satisfy.</p> <p>2. Mortgages — Foreclosure—Mistake—Limitation of Actions — Attorney’s Fees. — Indorsement of payment on a mortgage and delivery so indorsed to mortgagor is only a receipt for the mortgage debt, and is not conclusive between the original parties, but it may be shown to have been a mistake and the mortgage _ foreclosed within twenty years and attorney’s fees provided for therein added in the judgment.</p> <p>3. Evidence — Transactions with Decedent. — A transaction between an agent and another on behalf of the principal may be testified to by the other party in suit by such agent as administrator of the deceased principal against him involving the transaction.</p> <p>4. Trust — Limitation of Actions — Accounting.-—Payment by mortgagor to a third party of a sum of money to be by him paid to his mortgagee, which the third party applied to his own account against mortgagor, giving mortgagor a statement showing such application, is a repudiation of the trust by the third party and right of mortgagor to require him to account for the fund so applied is barred in six years after notice of the application.</p>

<p>Payment — Waiver—Mortgages—Contracts.—Tender of amount due on a mortgage debt before maturity is not a legal tender as mortgagee cannot be required to accept payment until debt is due. That mortgagee accepted a part of the debt before maturity is not a waiver of his right to hold remainder of investment until maturity.</p>

<p>Chattel Mortgages. — The right of the mortgagee to seize mortgaged chattels after condition broken is a license coupled with an interest and cannot be revoked by mortgagor. Mortgagee by his agent may enter the premises of mortgagor against his objection and take possession of the mortgaged property if he can do so without a breach of the peace.</p>

Before DeVorE, J., Edgefield, September, 1908. Motion to open default judgment by Annie H. Bolton in case of M. Toney Turner against W. E. Bolton and Annie . H. Bolton. From order granting motion, plaintiff appeals. cite: Code of Proc., 155; 15 Ency. P. & P., 283; 29Cal., 423; 99 N. C., 400; 111 N. C., 248; 112 N. C., 772. cites: Code of Proc., 195 ; 53 S. C., 222; 56 S. C., 21; 62 S. C., 506.

<p>Repeal of Statute by Implication. — The proviso to section 2720, Code 1902, relating to payment of employees in orders, etc., is not repugnant to the proviso to section 2719, and hence does not repeal that proviso by implication.</p>

<p>Homestead. — An automobile, not being a tool or implement of trade, is not included under the homestead exemption to a person not the head of a family.</p>

<p>Before Gary, J., Newberry, November term, 1907.</p> <p>Action by Annie P. Oxner against Western Union Telegraph Co. From judgment for plaintiff, defendant appeals.</p>

<p>Before Hydrick, J., Greenville, April, 1908.</p> <p>Action by W. M. Logan against Atlantic and Charlotte Air Line Railway Company. From judgment for plaintiff, defendant appeals.</p> <p>The Circuit order refusing new trial is:</p> <p>“The grounds of the motion for a new trial herein are all based upon considerations of the testimony, except the fifth, sixth and seventh.</p> <p>“Notwithstanding the facts of the case have been resolved in favor of the plaintiff by two juries, I have carefully reviewed the testimony, and have decided not to disturb the verdict.</p> <p>“At the time of his injury, plaintiff was an employee of Southern Railway Company, which, as lessee of the defendant, had the possession and operation of the defendant’s property rights and franchises. In July, 1903, plaintiff brought an action in the Court of Common Pleas for Spartanburg county against the Southern Railway Company for the same cause of action. That case was removed to the Circuit Court of the United States by the Southern Railway Company, where it was tried, resulting in a judgment for the plaintiff. An appeal was taken to the Circuit Court of Appeals which reversed the judgment of the Circuit Court and remanded the case for a new trial. The opinion and judgment of the Circuit Court of Appeals will be found in 138th Federal Reporter, at page 725.</p> <p>“After the rendition of the judgment of the Circuit Court of Appeals and while the case was still pending in the Circuit Court, the plaintiff commenced this action. The defendant pleaded the pendency of the action in the Federal Court in abatement. The plea was overruled. The defendant then requested the Court to charge the jury: 1. ‘That the plaintiff in this action is concluded and bound by all questions of fact and law decided by the Circuit Court of Appeals in the judgment herein before referred to which would have bound him in a second trial in the United States Court.’</p> <p>2. “ ‘The defendant Company, as lessor of the Southern Railway Company, is not liable to a servant of the latter company for injuries received by him in consequence of the negligence of such company.’</p> <p>“These requests were refused. The fifth, sixth and seventh grounds of the motion for a new trial allege error in overruling the plea in abatement and in refusing said requests.</p> <p>“The defendant is liable for torts of the Southern Railway Company in the operation of its railroad on the ground that the Southern Railway Company is its agent in the operation of the road. Smalley v. Ry. Co., 73 S. C., 574, 53 S., E., 1000.</p> <p>“Therefore, the law governing the relation of principal and agent is applicable.</p> <p>“Upon the principles governing that relation, the master is liable for the acts of his servant.</p> <p>“It is well settled that the principal and agent are jointly and severally liable for the torts of the agent, done within the scope of the agency. Schumpert v. Ry. Co., 65 S. C., 332, 43 S. E., 813, and cases cited by the Court.</p> <p>“Sometimes the principal and agent are spoken of as joint tort-feasors, though they may not, strictly speaking, be such. Nevertheless, the nature of their liability makes applicable some of the principles governing the liability of joint tort-feasors. One of these is that they may be sued jointly or severally for the torts of the agent, committed within the scope of the agency; and, if sued severally, neither action will abate the other.</p> <p>“There is another reason why the plea could not be sustained. The actions are pending in jurisdictions which are foreign to each other — at least in the sense and to the extent that an action pending in one will not abate an action pending in the other between the same parties for the same cause.</p> <p>“The authorities have agreed that the Courts of the different States of the Union are foreign to each other, Hill v. Hill, 51 S. C., 134, 28 S. E., 309. There is some diversity of opinion as to whether the Courts of a State and those of the United States, sitting within the territorial limits of the same State, are foreign to each other. One of the reasons why the Courts of one State will not abate an action pending therein on the plea that another action between the same parties for the same cause is pending in another State is that the citizens of a State should not be sent into a foreign jurisdiction to get justice. So far as the greater expense and inconvenience attendant upon getting justice in a foreign jurisdiction may affect the question, it would apply with equal force to the decision of the relation of the State and Federal Courts to each other. To send a citizen of the State into the Federal Courts to get justice may work as great a hardship upon him in the matter of inconvenience and expense as to send him into a foreign State. In many if not in most cases, the trial is had as far away from his home, and he has to attend it at as great expense and inconvenience to himself and his witnesses as if he were sent into a foreign State. Moreover, the jurors who are to pass upon the credibility of his witnesses are as complete strangers to them. The Supreme Court of the United States has held (Gordon v. Gilfoil, 99 U. S., 169, and other cases) that the State Courts are foreign to the Federal Courts, sitting within the same State, and a majority of the inferior Federal Courts have adopted the same view. See 1 Cyc., 38, and cases cited. 1 Fncy. PI. & Pr., 764.</p> <p>“For the sake of uniformity, I think the State Courts should adopt the same view with regard to the Federal Courts sitting within the State, so that we shall not have the Federal Courts holding the State Courts to be foreign and the State Courts holding the same Federal Courts to be domestic.</p> <p>“The decision of the question of res judicata has been more difficult. The principles of the law of res judicata are few and simple, but the application of them to particular cases is not always easy.</p> <p>“A general statement of one of the elementary principles of that law is that only parties and privies are bound by a judgment. ‘Privies,’ in the sense in which the word is here used, includes only those who have ‘mutual or successive relationship to the same rights of property.’ 24 A. & E. Ency. Law, 2 Ed., 764. ‘The ground of privity is property, not personal relation.’ Big. Estop., p. 142; Freem. Judg., sec. 162, Smith v. Moore, 7 S. C., 215.</p> <p>“ ‘Absolute identity of interest is essential to privity. The fact that two parties as litigants in two different suits happen to be interested in proving or disproving the same facts creates no privity between them.’ 24 A. & E. Ency. L., 2d. ed., page 747.</p> <p>“In some of the cases the word is used, somewhat inaccurately, to denote the relation and the consequences thereof between principal and agent, and, unless the sense in which the word is used is kept in mind, we are apt to be led into confusion and error.</p> <p>“ ‘The application of the principle of res judicata to persons standing in the relation of principle and agent or master and servant has, by some authorities, been supported on the ground that privity exists between persons standing in these relations. But other authorities deny the existence of such privity, and hold that in such cases the technical rule is, upon grounds of public policy, expanded so as to embrace within the estoppel of a judgment persons who are not, strictly speaking, either parties or privies.’ 24 A. & E. Ency. L. 3d ed., 753.</p> <p>“Where an agent is sued, and, after trial on the merits, the issue is determined against the plaintiff, the principal, though not a party to the suit, can avail himself of the judgment as a bar, when sued by the same plaintiff on the same cause of action. Swygert v. Wingard, 48 S. C., 324, 26 S. E., 653; Dor emus v. Root, 54 L. R. A., 659, 23 Wash., 710.</p> <p>“A final judgment on the merits in favor of the Southern Railway Company in the case in the Federal Court would, unquestionably, have been a bar to this action; because it would have been an adjudication by a Court of competent authority that the Southern Railway Company is not liable to the plaintiff, and because the liability of the defendant herein is predicated solely upon that of its agent, the Southern Railway Company. This is true, even though the defendant was neither party nor privy to that suit.</p> <p>“The authorities generally agree that when the principal is sued for the act of his agent, he can vouch the agent to defend, by giving him notice of the action and an opportunity to defend, and if the agent fails to defend, or if judgment goes against the principal, the agent will be concluded by the judgment; and all agree that the judgment would be conclusive as to the amount which the principal had to pay, and prima facie evidence of the liability of the agent to his principal therefor. But the conclusive effect of the judgment depends upon notice of the pendency of the action and an opportunity to defend it. Smith v. Moore, 7 S. C., 219; Robinson v. Baskins, 22 Am. St. Rep., 202, and notes; Freeman on Judg., sec. 164; 24 A. & F. Ency. L., 2d ed., 741; Catterlin v. Frankfort, 41 Am. Rep., 627; Rmma Silver Mining Co. v. Bmma Silver Mining Co. etc., 7 Fed. Rep., 401; Gillingham v. Charleston Tow Boat etc., 40 Fed. Rep., 649; Bailey v. Sundberg, 49 Fed. Rep., 583.</p> <p>“I have found no case which holds that the agent would be concluded by a judgment against his principal without notice and an opportunity to defend the action. A fortiori, the principal would not, without notice and opportunity to defend, be concluded by a judgment against his agent — ■ especially in favor of a third person, the plaintiff in that judgment, — because to so conclude him and make him responsible for the agent’s ‘bad pleading, or blunders in the trial of the cause * * * would be to deprive him of his property without due process of law. Yet, as regards the plaintiff who has before sued the agent, and been defeated, there is no reason why he should not be concluded upon that principle of public policy which gives eveiy man one opportunity to prove his case, and limits every man to one such opportunity.’ Bmma Silver Mining Co. v. Bmma Silver Mining Co., supra.</p> <p>“Upon the authority of the cases above cited, as well as upon reason, I hold that the defendant in this action would not have been concluded by a final judgment in favor of the plaintiff against the Southern Railway Company in the Federal Court. This being so, the defendant can not avail itself of any adjudication in that case in this action — unless, as before held, the judgment had been final against the right of the plaintiff to recover; for estoppels must be mutual. It must be such a judgment as would conclude the party invoking it as well as the other party. 24 A. & E. Ency. L., 2d ed., 730.</p> <p>“While, as we have seen, a final judgment against the plaintiff in the Federal Court would have been a bar to this action, a final judgment against the Southern Railway Company, without satisfaction, would not have been a bar to this action; because the plaintiff has the right to pursue both companies to judgment, though he can have but one satisfaction. Suppose he had obtained judgment against the Southern Railway Company and found it insolvent, or for any reason had been unable to collect the judgment, unquestionably he could have sued the defendant to judgment also, and then it would have been his right to elect against which company he would demand satisfaction. Hawkins v. Hatton, 1 N.-& McC., 318; Smith, v. Singleton, 2 McM., 184; 1 Herman on Estoppel, sec. 177.</p> <p>“This conclusion is not in conflict with the principle of res judicata decided in Jones v. Ry. Co., 65 S. C., 410, 43 S. E., 488. There is a distinction between res judicata, which is merely the law of that case, in the further progress of it, and the estoppel of a final judgment, especially when invoked by one who is neither party nor privy to the record.</p> <p>“Suppose, for instance, Jones had obtained a judgment against the Railway Company and found that he could not collect it, for any reason, and had brought suit against the servant of the company by whose negligence he was injured, I do not think that either would have been concluded by the decision of the Supreme Court in the first appeal in the case against the railway company, unless, of course, the servant had been so connected with that case by notice of the action and defending it as to be concluded by the judgment. To support the plea of res judicata the judgment must be final and on the merits. 24 A. & E. Ency. L-, 2d ed., 792-4.</p> <p>“I must not be understood as holding that the principle of the law decided by the Federal Court in the case of Logan against Southern Railway Company is not sound. I was not requested to pass upon that principle or to change it. I was merely requested to hold and charge that Logan was bound in this case by all questions of law and fact decided in that case, as he would be upon a second trial of that case.</p> <p>“The motion is overruled.”</p> <p>cite: Pendency of suit in Federal Court is bar to this: 79 S. C., 558; 57 S. C., 453; 13 Wall., 679 ; 98 N. W., 625; 82 N. W. 377; 13 Wall., 679; 65 N. E., 717; 2 111. App., 228; 63 Am. Dec., 627; 40' So., 688; 54 L. R. A., 659; 24 Ency., 751; 73 S. C., 572; 57 S. C., 453; 98 N. W., 532. Plaintiff is concluded by adjudication of Circuit Court of Appeals: 43 S. C., 221; 71 S'. C., 102; 65 S'. C., 420; 24 Ency., 812. Lessor is not responsible for the breach of contract relations of lessee: 75 S. C., 162; 56. S'. C., 455; 67 S. C., 292; 25 SC., 216; 28 & C„ 401; 38 S. C., 427; 41 S'. C., 415, 91; 43 S. C., 197; 63 S. C., 375; 65 S. C., 271; 73 S. C., 572; 74 S. C., 332; 79 & C., 273; 13 N. E., 68; 72 Fed. R., 752; 74 Fed., 282; 57 Fed., 137; 40 N. E. R-, 519; 28 L. R. A., 216; 37 S'. E., 992; 20 A. & E. Ry. (N. St), 852 ; 77 Ga., 804; 79 Ga., 489; 70 Ga., 464; 68 Me., 68; 54 Mich., 91; 29 N. H., 35; 51 N. H., 593; 94 Pa. St., 351; 3 L. R. A., 597; 124 Fed. R„ 796; 66 L. R. AL, 75.</p> <p>cite: Plaintiff is not bound by decree in Federal Court: 24 Ency., 812, 749. Lessor is liable for injury to servant by lessee: 75 S'. C., 162'. Plea of action pending properly overruled: 1 Cyc., 35; 42 L. R. A., 450; 29 Am. St. R., 312; 47 C. A. C:, 205; 64 & C., 141; 1 Cyc., 39; 99 U. S., 178; 93 U. S., 578; 7 Fed., 522; 9 Fed., 789; 22 Fed., 30, 711; 109 Fed., 508; 135 Fed., 650; 136 Fed., 1; 19 N. E., 788; 4 N. E., 382; 3 Cur. L-, 2; 5 Cur. L-, 2; 79 S. C., 558; 7 L. R. A., 277.</p>

<p>Before Watts, J., York, February term, 1908.</p> <p>Action by Mrs. L. P. Brown, admx. of L. P. Brown, against Southern Railway — Carolina Division and Southern Railway. From judgment for plaintiff, defendant appeals.</p> <p>Messrs. McDonald & McDonald cite: Proximate cause: 79 N. E., 1040; 2 Am. St. R., 204; 31 Am. St. R., 17; 51 Am. St. R., 700; 55 Am. St. R., 728; 57 Am. St. R., 786, 935; 65 Am. St. R., 137; 2 Am. St. R., 193; 46 Am. St. R., 849; 53 Am. St. R., 391; 76 S. C., 202. Deceased when injured was acting as brakeman: 12 Fncy., 949, 1020'; 2 Lab. on M. & S-, secs. 633-4; 71 S. C., 56; 72 S. C., 243; 70' S'. C., 95; 76 S. C., 455-, 549; 80 S. C., 236; 73 S. C., 572. Sec. 15, art. IX, Constitution, does not apply: 52 S. C., 438; 56 S- C., 446. No recovery for negligence of fellow-servant: 10 L. R. A., 97; 73 S. C., 572; 43 L. R. A., 347; 12 L. R. A., 97; 46 L. R. A., 347; 1 McM., 385; 78 S. C., 413; 79 S. C., 419. This defense may be proved under general denial: Wilson v. R. R., 51 S. C., ; 55 Mo., 569; 31 Ind., 20.' Violation of rule of master is contributory negligence: 8 A. & E. Ann. Cas., 1; 118 Fed., 220; 70 S. C., 242; 80 Fed., 488; 80 Ala., 32; 99 Ala., 471; 114 Ala., 131; 41 So., 860; 95 111. App., 578; 74 Ind., 440; 76 la., 340; 115 La., 86; 83 Mich., 564; 106 Mo., 74; 52 Mo. App., 648; 35 S. W. R., 879; 86 Va., 928; 83 Va., 288; 38 W. Va., 206; 55 Wis., 50; 51 Ark., 477; 94 Mich., 25; 76 Fed. R., 647; 4 Thornp. on Neg., secs. 4434, 4722, 4726; 1 Lab. on M. & S., secs. 324, 337, 364, 365; 2 Id., secs, 623, 629; 118 Fed. R., 230; 41 S. R., 634; 114 Ala., 373; 98 la., 514; 88 N. Y., 349; 55 Wis., 50; 121 Ala., 158 ; 70 S. C., 252; 100 Ga., 618 ; 94 Ala., 552; 11 S. F. R., 493. No violation of duty by defendants: 25 L. R. A., 833; 37 L. R. A., 712; 123 Fed. R., 468; 144 Fed., 605; 152 Fed., 933; 34 Gen. Dig., Mas. & Ser., secs. 171-6; 2 Lab. on M. & S., secs. 596-610.</p> <p>Mr. McCullough cites: Proximate cause is for jury: 38 S. C., 214; 62 S'. C., 130; 68 S. C., 55. Master is liable if negligent, although fellow-servant was negligent: 52 S. C., 446; 68 S. C., 56. Servant only assumes risks of usual duties: 51 S. C., 96; 20 Fncy., 132; 12 Fncy., 989; 1 Lab. on M. & S., sec. 465. Obedience of master is not contributory negligence: 68 S'. C., 55; 60' S. C., 17. Value of life: 78 S. C., 364. Contributory negligence: 61 S.-C., 486.</p> <p>Mr. Foster cites: Nonsuit: 59 S. C., 162; 57 S'. C., 429q 61 S. C., 468; 68 S. C., 378; 70 S. C., 250; 21 S. C., 93.. Proximate cause: Cool, on Torts, 124; Thomp. on Neg., sec. 59; 67 S. C., 61; 116 Fed. R., 867. Question for jury: 68 S. C., 489, 55; 40 S. C„ 109; 52 S. C., 324; 76 S. C., 202, 207; 77 S. C., 281; Cool, on Torts, 129. Contributory negligence must be pleaded: 76 S. C., 529; 74 S. C., 19; 51 S. C., 159, 79; 73 S. C., 503. Matter set out only in exception not considered: 76 S. C., 128; 27 S. C., 229; 72 S. C., 125; 36 S. C., 600; 37 S. C., 377; 76 S. C., 411. Master is liable if he and fellow-servant are both negligent: 94 Am. St. R., 263; 92 Am. St. R., 862; 60 S. E., 110. Construction of charge: 71 S'. C., 58; 70 S. C., 492; 65 S. C., 340; 57 S. C., 325; 53 S. C., 123; 59 S. C., 225; 78 S. C., 249; 72 S. C., 46; 73 S. C., 467; 50 S. C., 129; 68 S. C., 505; 25 S. C., 446, 128; 54 S. C., 73; 51 S. C., 312; 40 S. C., 427; 22 S. C., 187.</p> <p>Mr. McDow cites: Proximate cause is for jury: 68 S. C., 55. Rules must give way in emergency: 68 S. C., 55. Servant does not assume risk of incompetent servants: Hall v. Ry., 81 S. C.; 63 S. C., 559; 70 S. C., 490.</p>

Before DanTzlER, J., Marlboro, November term, 1907. Action by Lucy Breeden, Jane Newton and others against Alice G. Moore and others. Prom Circuit decree, plaintiffs appeal. Messrs. Livingston and Muller, cite: Limitation over after life estate of Mrs. Goodwin is not too remote: 46 S. C., 265; 1 Bail. Eq., 48; 1 Hill Oh., 265; 3 Rich. Eq., 384; 11 Rich., 489; 13 S. C., 118; Bail. Eq., 40, 42; Dud. Eq., 71; 1 Rich. Eq., 78, 399, 407; 16 S. C., 262; 52 S. C., 261.

<p>1, Master and Servant — Railroads—Contributory Negligence — Issues. —Where the evidence makes it doubtful whether an order issued by a superior servant to a servant who under the rules of the master is required to obey such superior servant is within the scope of the superior servant’s authority, the issue should be sent to the jury, but where a fireman at the command of the engineman, whom he must obey, under the rules of the master, jumps from an engine moving six or seven miles an hour to get a cup of coffee for the engine-man, he jumps at his peril and in so doing is guilty of contributory negligence. When servant may obey orders of his superior involving peril without being guilty of negligence considered.</p> <p>2. Ibid. — Negligence.—Where the time a servant has had the rules of the master for study is not definitely stated, the Court cannot say as matter of law that he has had them long enough to justify an inference that he should have known them and that his failure to obey them should be imputed to him as negligence.</p>

<p>Deeds — Mortgages.—Findings by the Circuit Court that the original contract between the parties was a sale of the land; that the instrument in question is a deed and not a mortgage, and that there was a contract to resell to grantor within a stipulated time, affirmed.</p>

Before Hydrick, J., Charleston, May, 1908. Action by Pearl C. Messervy against John W. Messervy and Adeline Messervy. The Circuit decree, overruling demurrer, is: “This is an action to recover damages of the defendants for maliciously enticing the plaintiff’s husband away from her and depriving her of. his comfort, society and aid. “The defendants demur to the complaint on two grounds: 1. That it does not state facts sufficient to constitute a cause of action. 3.

Before DeVorE, J., Lexington, June, 1908. Action by Walter C. Duncan against E. Jones Company. From order overruling demurrer, defendant appeals. cite: Two or more causes of action should not be stated together: 35 S. C., 475, 501; 37 S. C., 199; see. i86a, Code of Procedure, does not permit jumbling together of causes of action for malicious prosecution, false arrest, and assault and battery: 81 S. C., 320; 73 S. C., 271.

Before Ki/ugh, J., Pickens, March 1908. Petition by James M. Eerguson in re John Ferguson, as trustee et al., against John Ferguson et al. From order made on return to rule, heirs of H. M. Ferguson appeal. cites: Circuit Judge had no jurisdiction: 45 S. C., 10.

<p>Pleadings — Cities and Towns — Negligence.—In an action against a city for injuries caused by defects in its streets the allegations that “the plaintiffs did not in any way bring about such injuries by their own negligent act nor did they negligently contribute thereto” are material allegations of fact, constitute a part of plaintiff’s cause of action, and no facts upon which they are based need be alleged.</p>

Before Prince, J., Anderson, July, 1908. Action by C. S. Sullivan against Western Union Telegraph Company. Prom Circuit order affirming judgment of Magistrate B. P. Wilson, defendant appeals. cite: Defendant not liable under stipulations and proof: Jones on T. & T. Cas., secs. 360, 361; Joyce on Elec. E., secs. 16 and 17; 7 N. E., 838; 7 S. E., 639; 84 111., 36; 65 Ind., 188; 89 Ind., 457.

<p>Fees — Commissions.—A master selling lands for partition under decree of the Court is entitled to commissions of two per cent, on the first $300 and one per cent, on the balance on the amount collected by him, and one-half of one per cent, on all amounts disbursed by him except his own costs and commissions.</p>

Petition in the original jurisdiction of this Court by the Sperry & Hutchinson Company and D. E. Lusk for injunction against the city of Columbia, W. C. Cathcart, chief of police, C. C. Stanley, recorder, and Joseph R. Allen, auditor, setting forth that the petitioner was engaged in a system of advertising by trading stamps, which were sold to the merchants of the city, and redeemed by petitioners in goods, that contract had been made with merchants of the city, that the…