Volume 83 — South Carolina Reports

Before Prince, J., Florence, January, 1908. Action by H. M. Smith against G. O. Cox. The Circuit decree is: “At the recent fall term of Court of Common Pleas for Florence county the above entitled case was called for trial, and by consent of counsel it was marked ‘heard’ by the Court with leave to counsel to submit written argument.

Before Wilson, J., Lexington, January, 190-8. Action by Emma M. Ogilvie and J. W. Ogilvie against Western Union Telegraph Company. From judgment for plaintiffs, defendant appeals. cite: Witness should only state facts as to suffering mental anguish: 69 S. C., 537; 73 S. C., 524; 70 S. C., 423 ; 73- Ala., 19-2. Statute is not intended to permit recovery for annoyance at negligent act: 81 S. C., 235; 61 S-. W., 492.

Before DeVorE, J., Saluda, August, 1908. Action by M. W. Berry against Virginia State Insurance Company. From judgment for plaintiff, defendant appeals. cite: Declarations of deceased agent not admissible: 79 S- C., 499. Saluda Court had no jurisdiction: 05 Stat., Ill; 79 S. C., 557; 19 S. C., 018; 74 S. C., 440; 05 S. C, 387; 08 S. C., 313; 74 S. C., 69. cites: Agreement to fix-value at $4,00 void because not fulfilled: 38 S. C., 199.

<p>Before Klugh, J., Greenville, March, 1908.</p> <p>Action by Harley Alexander, by guardian, against Carolina Mills. From judgment for plaintiff, defendant appeals.</p> <p>cite: Contributory negligence: 59 S. C., 323; 56 S. C., 95; 77 S. C„ 403; 62 A. S. R., 679- 64 A. S. R., 927; 81 A. S. R., 703. Assumption of risks: 64 S. C., 215; 55 S. C., 488; 76 S. C., 457. By minor: 26 Cyc., 1216; 4 Thomp. on Neg., sec. 4686; 1 L M. & S., sec. 291; 113 N. Y., 545; 105 N. Y., 26; 45 C. C. A., 515; 13 S. W., 375; 46 S. E., 805; 54 C. C. A., 83; 29 S. E, 923; 18 Atl., 852; 37 At., 61; 1 E. R. A1., N. S., 282; 72 A. $, R., 689; 60 A. S. R., 917; 33 A. S. R., 251; 76 S. C„ 351; 80 S. C., 351.</p> <p>cites: Plaintiff not excused by charge from using ordinary care in observing defects: 81 S. C., 375; E. M. & S., 5. Plaintiff did not asstime risk of employment: 6-6 S. C., 486; L. M. & S., 589, 588; 22 Cyc., 580; Tyler on Inf. & Cov., 57-8; 3 Brev., 194; 1 S. C., 468; 77 S. C., 71; 3 McC., 257; 4 Am. Dec., 88.</p>

Before Gage, J-, Laurens, Spring term, 1908. Action by Lidia Owens, by guardian, against Laurens Cotton Mills. From judgment for plaintiff, defendant appeals. cite: Where servant knew of danger'master is not liable: 72 S. C., 347; 55 S. C., 483; 157 Mass., 418; 131 N. Y., 631. Master assumes servant will use proper care: 4 N. E. R., 231; 23 S. C.,' 537; 41 S. C., 388.

Before DanTzreR, J., Sumter, April term, 1908. Action by Isaac Strauss against Postal Telegraph-Cable _ Company. From judgment for plaintiff, defendant appeals. cites: Charge for message should not be recovered here: 5 McC., 108; 154 U. S., 1. Punitive damages not recoverable: 77 S. C., 399. 527, 148, 155; 76 S. C., 301; 25 Ency., 831, 1616; 69 S. C., 549; 75 S. C., 116.

Before DanTzlER, J., Richland, July term, 1907. Action by Mary E. Norton and Albert Norton against Columbia Electric Street Railway, Eight and Power Company. From judgment for defendant, plaintiff appeals. cite: Contributory negligence is no defense to a wilful tort: 23 S. C., 531; 61 S. C., 484; 64 S, C., 491; 73 S. C., 467; 78 S. C., 537. How issue of no wilfulness is raised: Rule 77, C. C.; 36 5. C., 585; 75 S'. C., 290 ; 72 & C., 411; 78 S. C., 537; 79 S. C., 150.

Before Hydrick, J., Anderson, Fall term, 1908. Action by H. P. Brown against Southern Railway Company. From judgment for plaintiff, defendant appeals. cite: Biability of master when servant is charged with inspection: 41 s. E., 981; 47 S. E., 586; 55 <S, C., 939; 70 S. C., 470; 72 S. C., 346, 97, 242, 270; 75 S. C., 103; 62 S, C., 398.

<p>Ahpeai,. — An order reversing judgment of magistrate and ordering new trial because of error of finding of fact is not appealable.</p>

Before Prince, J., Richland, Spring term, 1907. Indictment against Thomas J. Gibson for receiving stolen bonds.

Before Watts, J., Lancaster, April, 1908. Action by Emma A. Small, administratrix of S. E. Usher, against J. H. Usher et al. Erom Circuit decree as to taxation of costs and disbursement of funds in hands of sheriff and administratrix, plaintiff appeals.

<p>Telegxaph Companies — Bax.'—A party sending a message -written on a delivery blank form containing the words on its face above the message “this company transmits and delivers messages only on conditions limiting its liability, which have been assented to by the sender of the following message,” is bound by the stipulation that claim for damages must be filed within sixty days.</p>

<p>Towns and Cities — Sentence—Constitutional Law. — Under Section 2004, Code 1902, the mayor or intendant of a city or town should give one convicted of violating a municipal ordinance an alternative sentence. Said section does not violate Section 33 of Article V of Constitution. Said section is not limited by Section 2003 limiting the jurisdiction of magistrates.</p>

<p>Issues. — On a complaint showing plaintiff is entitled to damages for breach of contract, rescission of contract and injunction against continuous breach, defendant, denying some allegations, and explaining others, is not entitled to have all the issues tried by jury, but it is proper for Judge to order equitable issues tried by Court before legal issues.</p>

<p>1. Negligence — Presumption-—Carrier—-Passenger.—There is no presumption of negligence against carrier from bare fact of injury to passenger while on its train, but such presumption arises on proof of such injury as the result of some agency or instrumentality of the carrier.</p> <p>2. Evidence. — Declarations of a party containing the statement of a fact which at the time was against his interest should be given their appropriate weight with other facts by the jury.</p> <p>3. Charge. — Instructing jury what force and effect should be given to the declarations of a party is a charge on the facts under Article Y, Section 26, Constitution.</p>

<p>1. Evidence — Negligence—Railboad—Communicated Fibes — In an action under the statute for damages from communicated fires rejection of evidence tending to show the railroad company had previously communicated fire to the property is not prejudicial to the rights of claimant as that is not the main issue in controversy.</p> <p>2. Discbetion. — Relevancy of evidence is largely within the discretion of the trial Judge.</p> <p>3. Evidence — Books.—Objection to admission of book in evidence that it could not be used to show entries not proved, will not cover the point that the book was not admissible to show want of entry.</p> <p>4. Evidence — 'Cumulative.—No error here in excluding cumulative evidence.</p>

Before DanTzlER, J., Florence,-. Two actions: (1) Maud Faughlin and George Faughlin against Southern Public Service Corporation and Florence Fight and Power Company; and (2) Fawrence Edward Faughlin, by guardian, against same defendants. From judgment for plaintiff, defendants appeal. No citations. Messrs. Baker and Davis cite: Receipts as evidence: 77 S. C., 190'; 73 S. C., 21é, 58; Wilfulness: 69 S. C„ 305.

<p>1. Carrier — Passenger—Negligence—Proximate Cause. — That a train failed to stop at a station to which a passenger had paid his fare is evidence of negligence, and the presumption that injury to passenger was due to carrier’s negligence carries issue of proximate cause to the jury.</p> <p>2. Ibid. — Ibid.—Contributory Negligence. — It is not contributory negligence per se for a passenger to go onto the platform of the car at his station, having reason to believe the train is going to stop there.</p>

Before Wirson, J., Edgefield, March, 1908. Action by Lillie C. Talbert against Western Union Telegraph Company. From judgment for plaintiff, defendant appeals on the following exceptions: “Because the presiding Judge erred: 1. “In not sustaining defendant’s motion to strike out in paragraph 8 of the complaint the following words: ‘with a relapse of typhoid fever;’ and the words: ‘between Columbia, S- C., and Asheville, N. C., with a spell of typhoid fever.

Petition in the original jurisdiction of this Court by H. G. Carrison, A. D. Kennedy and P. T. Villepigue, for themselves and other taxpayers of Kershaw county, for injunction against Kershaw county, Matthew C. West, supervisor, J. K. DeKay, N. Kelley, S'. F. Kelley and D. M. Kirkley, county commissioners, and Southern National Bank.

<p>Before Gary, J., Richland.</p> <p>Action by L,. I. McCrary, administratrix of E. D. McCrary, against Southern Railway, W. T. Wright, E. L. Shillitto and O. E. McEachern. From judgment for plaintiff, defendant appeals.</p> <p>cite: Is it duty of master not to permit his servant to work overtime? 9 Fed. St., Ann., 463, 464; Stinson’s Am. Con., 55, 66. Servant here guilty of contributory negligence: 77 S. C, 328; 81 S. C., 100; 78 S. C, 374; 128 N. C., 517; 39 S. C., 51; 87 S. W., 1052. Appellant’s requests should have been passed on: 59 S. C., 310; 69 S. C, 539; 67 S. C., 199; 78 5. C., 401. Assumption of risks applies here: 61 S- C., 479; Eab. on M. & S., 969; Dresser’s Emp. Eiab., 357-8; 49 S. C., 12; 81 S. C., 348.</p> <p>Mr. Verner cites : Working a servant without necessary rest is negligence: 161 Ind., 393; 7 A. & E. Ann. Cas., 316; 29 R. R. A., 104; 75 S. C., 160'. Loss of sleep was proximate cause of injury: 1 Strob., 525; 76 S. C., 204; 78 S. C., 384; 81 S'. 'C., 338; 54 S. C., 498. Deceased not guilty of contributory negligence: 76 S. C., 204; 52 S. C., 324; 81 S. C., 100, 203'; 80 & C, 1, 226, 531; 77 S.° C., 325; 58 S. C., 491. Failure to charge appellant’s requests not error: 59' S. C., 307; 20 S. C., 204; 81 S. C., 510; 51 S. C., 331; 50 S. C., 42)5; 68 S. C., 428 ; 59 S. C, 310; 78 S..C., 400; 51 S- C., 312. Assumption of risks, is for jury: 61 S. C., 478; 63 S'. C., 575; 68 S. C., 68; 67 S..C., 290; 65 S. C., 195; 63 S. €., 575.</p>

Before Wirson, J., Lexington, February, 1908. Action by J. W. C. Warren against S-. L. Shealy. From judgment for plaintiff, defendant appeals. cites: Damages for breach of contract: 23 Fng. Rui. Cas., 545; 78 S. C., 296. Counterclaim may be set up: 76 S. C., 20; 69 S. C., 430. Amendments during trial: 80 S. C., 213; 51 S. C., 412; 55 S. C., 90; 68 S. C., 419. Rule of compensation for part performance: 7 Ency., 152, note 4; 1 Am.

<p>Contract. — Charge in this case, when construed as a whole, held not to have misled the jury as to the construction of a contract for purchase of phosphate rock.</p>

Petition for injunction in the original jurisdiction of this Court by Eugene S. Werts, as county auditor of Newberry county, against L. I. Feagle, as county supervisor, and Frank M. Schumpert, as judge of probate.

Petition in the original jurisdiction of this Court by W. H. Ross, mayor, W. O. Johnson, W. L. Settlemyer, T. H. Littlejohn, R. S.… Held: as provided by law, on March 31, 1909, in which election a majority of the votes cast by the qualified electors in said town were in favor of the issuance of said bonds, as shown by the certificate of the managers of the election, which is made a part of this petition and marked Exhibit ‘E.’ 8th. “That thereafter, pursuant to the…

<p>Motion in the original jurisdiction of this Court by R. A. Adams in case of State v. himself to have the Court declare void its judgment in this case in which it reversed the Circuit judgment granting him a hew trial.</p>

<p>1. Evidence — Pbeeiminary Examination.. — The written statements of the magistrate of the evidence taken at a preliminary examination is the best evidence of what the accused swore to there.</p> <p>2. Exception.. — That one accused of crime testifies on the trial to facts admitted in parol as testified to at preliminary examination renders exception on that point unavailing.</p> <p>3. Larceny. — Charge here excepted to means nothing more than the law presumes one found in possession of stolen goods to be the thief unless the jury find in the whole case some satisfactory explanation of the possession consistent with his innocence.</p> <p>4. Ibid. — Evidence that like brasses to those found had been stolen from a railway company, that those found were marked with the company’s name, that they were more valuable for railroad purposes than for junk, that defendant’s only explanation of there being in his possession was he did not know they were in the car he was loading with junk, was sufficient for jury to infer he came by them feloniously.</p>

<p>Before Wii,son, J., Sumter. July, 1908.</p> <p>Action by Leona Epperson et al. against Edward A. Jackson, as administrator of Thos. W. Belvin et al. From Circuit decree both parties appeal.</p> <p>cites: As to jurisdiction of Circuit Court: Code, 1903, 3557; Con., art. V, secs. 19, 15; Code of Proc., 40, 55 ; 33 S. C., 46; 33 S. C., 446; 33 S. C., 46. Right of probate court to fix upset price in order of sale: Code of Proc., 3605, 3606; 3 Bay., 333. On sale without authority administrator is only liable for value and interest: 3 McC. Eq., 185; Cross. Ex. & Ad., sec. 378; Code, 1903, 3603, 3533. As to interest: 57 S. C., 41; 4 Rich. Eq., 95; 18 S. C., 1; Riley’s Eq., 38.</p> <p>cite: Common Pleas Court has concurrent jurisdiction: Adams Eq., sec. 330; 1 Pom. Eq. Jur., sec. 140.; 1 S. C., 186; 7 S. C„ 473; 34 S. C., 580; 16 S. C., 171. Administrator is liable for value of property sold in disobedience of order: 2 S. C., 343; 1 DeS., 304, 575; 3 Hill Ch., 97; 13 Rich. Eq., 369; Code, 1903, 3605; 13 S. C., 575; 39 S. C., 537; 3 Hill Ch., 73; Riley Ch., 19; 5 Rich. Eq., 337; 3 DeS., 94; 3 McC., 150; Bail. Eq., 13; McM. Eq., 190; 18 Cyc., 746, 768, 820, 844, 845; 35 La. Ann., 858; 2 S. C., 337; 7 Ency., 289, 355, 358; 4 DeS., 526, 35 Ala., 553; 13 Wis., 1; 14 Wis., 210; 12 Ala., 305; 4 Watts, 177; 1 Doug., 422; 3 John Ch., 552; 15 M. M. Ch., 508. Commissions: Code, 1902, 2555; 11 S. C., 156; 42 S. C., 58; 10 S. C., 208; 14 S. C., 252; 18 S. C„ 3. Interest: 11 S. C., 140; 18 S. C., 2; 57 S. C„ 36.</p>

Before Watts, J., Spartanburg, December, 1907. Action by John Free, as administrator of Jules Free, against Southern Railway.

<p>Attorney at Law — Contempt.—One who advises another as to his legal rights, accepts money of him as compensation for his services in procuring the consent or order of a magistrate that an imprisonment already entered on be discontinued on payment of the fine first imposed in the alternative, practices law, and an attorney previously debarred is in contempt of Court by so doing.</p>

<p>Deeds — Mortgages.—The burden resting upon appellant to show error below in finding that deed was intended as a mortgage, and he having failed to show the preponderance of evidence is in his favor, finding on Circuit is affirmed.</p>

Before Wilson, J., Sumter, July, 1908. Action by L. W. DesChamps against Atlantic Coast Line R. R. From Circuit order, affirming order of magistrate granting new trial, plaintiff appeals. . cites: What must be established to obtain'a nezv trial on after-discovered evidence? 33 S. C„ 403; 15 S. C., 540; 16 S. C., 116; 8 Ency. Ev., 996; 15 S. C., 547; 14 Ency. P. & P., 824, 796; 29 Cyc., 885, -874; 68 S. C., 476.

Before Gary, J., Richland, June, 1908. Indictment against Glenn Hunt. From judgment on Circuit, defendant appeals. cites: Applicdrtion should be made to military authorities for person of soldier: 59 Art. War; 2 Win. Mil. L., 1076, 1077, 1079. Oral argument.

Before MemmingEr, J., Charleston, July, 1908. Action by Germania Brewing Co. against the County Dispensary Board of Charleston County.

<p>Before DeVorE, J., Charleston, February, 1909.</p> <p>Indictment against Thomas Cokley. From Circuit judgment, defendant appeals.</p>

<p>Before Wilson, J., Bamberg, fall term, 1908.</p> <p>Action by J. J. Fogle against Southern Ry. From judgment for plaintiff, defendant appeals on the following exceptions:</p> <p>1. “Because the Circuit Judge erred in charging the jury as follows: Tt is for you to say whether or not those are the facts or not; whether the railroad company was requested to ship them or not, and whether the office was open or closed; and if you find that those are the facts, what amount of damages has the plaintiff sustained, if you find that he has sustained any at all?’ (a) It being respectfully submitted that the language of the Judge caused the jury to believe that in order for the plaintiff to recover it was only necessary for the plaintiff to prove that the plaintiff requested the defendant to- ship the melons and that the office was closed. It being respectfully submitted, that the Judge was in-error in so charging.</p> <p>2. “Because it was error for the Circuit Judge to charge the jury in the following language: ‘There are two kinds of damages; there are two kinds o.f damages, compensatory, or actual damage; that is, to make a man whole, to repay him his actual loss; or they may be pecuniary, vindicative or exemplary damages, that means that in addition to the actual damages that a man has sustained, vindicative or exemplary damages are awarded by way of punishment to the wrong-doer, what we generally call smart money; not only gives the one damaged actual damage, but sets an example to deter others or the same party from doing the same thing; those are called vindicative, pecuniary or exemplary damages. In this case they claim that the plaintiff is not only damaged seventy-five dollars, but by reason of the wilful, wanton, malicious act of the defendant he should be paid an additional amount on account of the wanton acts of the defendant. Now, what is next? The plaintiff says that the defendant was negligent. Negligence is the failure to do what a reasonable and prudent person would have done under the circumstances, or in doing what a reasonable and prudent person would not have done under the circumstances. It may be an act of omission or an act of commission. Or, when it is your duty to do a thing, then, not doing it, under ordinary circumstances; the not doing it under circumstances that the person of ordinary prudence and care would have done.’ Thereby causing the jury to believe that punitive damages could be given for mere negligence.</p> <p>3. “Because the Circuit Judge erred in charging the jury as follows: Tf you believe that he is entitled to recover, the question would be, what amount. That is entirely with you; he can’t get any more than he claims, and he ought not to get any more than he has proven, if any.’ Thereby causing the jury to believe that it was within the discretion of the jury to give more damages than was proven.</p> <p>4. “Because the Circuit Judge erred in overruling the motion for a new trial, made upon the ground that the verdict was not warranted by the testimony.</p> <p>5. “Because the Circuit Judge erred in refusing the motion for a new trial, made upon the ground that there was no testimony to warrant the finding of the verdict for punitive damages, and, since the plaintiff testified that the value of the melons was only seventy-five ($75) dollars, it is evident that the jury awarded punitive damages.</p> <p>6. “Because the Circuit Judge was in error in not granting the motion for a new trial, made upon the ground that the amount of the verdict was excessive and that a new trial nisi should be granted.</p> <p>7. “Because the Circuit Judge erred in refusing to grant the motion for a new trial, made upon the entire record of the case.”</p> <p>cites: When punitive damages should not be awarded: 29 S. C., 265; 34 S. C., 381, 311; 73 S. C., 181; Wood v. Mfg. Co., 80 S. C.</p> <p>cites: There was a scintilla of evidence as to recklessness: 78 S. C., 556; 81 S. C., 31; Huggins v. R. R., 78 S. C.</p>

Before Mrmminger, J., Cherokee, March, 1909. Action by H. S. Cline against Farmers’ Oil Mill. The reasons given by the trial Judge for refusing the motion for a new trial are: “The action was upon an instrument in writing in the nature of a promissory note, of which the following is a copy: 'Gaffney, S. C., August 24, 1908. The Farmers’ Oil Mill promises to pay to H. S. Cline one hundred and fifty dollars for one bay mare mule, by September 15, 1908.

<p>Carrier, — Freight—Penalty.—Where a consignee files a claim for damage to freight, which is not paid by the carrier, and upon suit he recovers one-half cent less than amount for which claim was filed, he is entitled to recover the penalty under 24 Stat., 81, as the difference is too small for Courts to recognize.</p> <p>Nix v. Bradley, 6 Rich. Eq., 43, and Kennedy v. GrambUng, 33 S. C., 386, distinguished from this case.</p> <p> Can the recovery of part of a claim filed be increased by interest so as to entitle the claimant to the penalty? </p>

Before Memminger, J., Colleton, July, 1908. Action by A. R. Ritter against Atlantic Coast Line R. R. Co., in court of Magistrate J. E. Bryan. From order sustaining magistrate’s judgment, defendant appeals. cites: Plaintiff must show negligence: 31 S. C., 152.

Before DeVore, J., Colleton,' March term, 1909. Indictment against Isaac Lazarus for murder of Dover Chisolm. From sentence, defendant appeals. cites: Lack of seal renders venire void: 2 Speers, 211; 65 S. C., 318.

<p>Before Wilson, J., Barnwell, November, 1908.</p> <p>Action by Geo. B. Breon against Miller Lumber Co. and Henry I. Wilson as trustee, and in his own right. From order refusing motion to set aside service of summons on defendants, they appeal.</p> <p>cite: As to service on non-resident: 69 S. C., 57; 72 S. C., 450; 63 S. C., 104; 62 S. C., 533; 76 S. C., 336; 16 S. C., 499; 30 S. C., 360; 81 S. C., 44; 50 S. C., 200; 80 S. C., 138; 54 S. C., 592; 36 L. R. A., 405. As to service of non-resident attending Court: 5 Rich., 523; 53 Mich., 541; 18 N. E-, 483; 20 N. E., 250; 25 S. E-, 947; 56 Am. D., 713; 155 Fed., 828; 4 N. J. L., 367; 68 Fed., 439; 23 Am. R., 35; 69 Atl., 888; 107 S. W., 968; 38 Am. R., 713; 20 L. R. A., 45; 87 N. Y., 568; 18 N. E., 483; 39 Minn., 179; 45 N. J. L-, 119; 88 S. W., 862; 64 L. R. A., 534; 3 L R. A., 266; 42 Cent. L. J.; 7 L. R. A., 817; 40 Ohio St, 280; 11 N. W., 280; 4 N. J. L., 367; 1 N. J. L, 142; 19 N. W., 178; 7 Jones, 629; 38 Am. R., 717; 9 S. E., 679; 25 S. E., 734; 38 L. R. A., 663; 7 L. R. A., 511; 25 S. E., 947. As to service on domestic corporation by service here on non-resident president: 11 L. R. A., 101.</p> <p>Messrs. Patterson & Son cite: As to service of non-resident: Code of Proc., 156; 16 S. C., 498; 42 S. C., 520. As to service on domestic corporation by service on non-resident president here: Code of Proc., 156; 44 S. C., 182.</p> <p>Messrs. Bates & Simms cite: Non-resident witness is not free from service of civil process, but from personal detention: Harp., 452; 56 S. C., 67.</p>

<p>1. Charge. — Failure to mention in a charge a specific request but covering the substance in the general charge is substantially charging the request.</p> <p>2. Conversion — Damages.—A lumberman is liable for the actual value of timber received by him from an independent contractor sawing timber for him whether he know the independent contractor had unlawfully cut the timber off the lands of another or not.</p> <p>3. New Trial — Appeal.—Alleged error in refusing new trial will not be considered where the record does not show grounds of the motion.</p> <p>4. Evidence — Trespass.—Evidence as to other trespasses held not prejudicial here.</p>

Before Gage, J., Richland, October term, 1908. Action by Lizzie Croft, administratrix of Arthur Altee, against the Southern Cotton Oil Co. From judgment for defendant, plaintiff appeals. cite: The Act of 1906 is constitutional: 30 S. C., 9. The act permits this action: End. Int. St., sec. 59; 59 S. C., 56; 29 S. C., 169.

Before Klugh, J., Greenville, April, 1908. Two actions by Marion Franklin Gambrell against United States Plealth and Accident Insurance Co., in court of Magistrate Samuel Stradley. From Circuit order reversing judgment of magistrate in both cases, the plaintiff appeals. cites: Knozvledge of agent is knowledge of principal: 47 S. C., 148; 52 S. C., 228; 70 S. C., 295; 57 S. C., 369.

Before Wilson, J., Sumter, July, 1908. Action by Joseph Howard, Jr., against Atlantic Coast Tine Railroad Co. FYom judgment for plaintiff, defendant appeals on the following exceptions: 1. “Because, it is respectfully submitted, his Honor, the Circuit Judge, erred in not granting the motion for nonsuit at the close of plaintiff’s evidence on the following grounds: (a) That the evidence showed conclusively that the injury to the plaintiff was the result of his own negligence.

<p>1. Chabge. — By stating the issues in this case the trial Judge held to have sufficiently stated the law.</p> <p>2. Chabge that one deceiving stolen goods knowing them to be stolen is guilty held correct.</p> <p>3. Ibid. — The evidence in this case held to warrant a conviction for receiving brass known to have been stolen from the Southern Railway.</p> <p>4. Ibid. — Evidence.—Under indictment for receiving stolen goods knowing them to have been stolen, evidence of other like acts is competent to show the scienter.</p> <p>5. Chabge. — Failure to charge a proposition not requested is not error.</p>

Before Memminger, J., Union, February, 190>9. Petition in condemnation by R. T. Davis against Union Manufacturing and Power Company. From Circuit order, refusing to set aside verdict, respondent appeals. cites:,There was no verdict: 14 S.. C., 396; 46 S. E., 413; 2 Bail., 354; 24 Pac., 692; 28 Conn., 140; 5 Col., 118; 45 S'. E., 348; 56 Col., 493; 65 Pac., 934; 50 N. Y. Supp., 776; 42 At., 228; 57 Pac., 317; 22 Ency. P. & P., 839, 859; 6 A. & E. Ann.

<p>Before Prince, J., Bamberg, Spring term, 1908.</p> <p>Action by J. A. Spann against Phoenix Insurance Company of Hartford, Conn. Prom judgment for defendant, plaintiff appeals.</p> <p>cite: Burden of proof of forfeiture is on defendant: 62 S. C., 150; 42 S. C., 14; 69 S. C, 407; 92 U. &, 375; 28 S. C., 431.</p> <p>cite: Plaintiff must prove waiver of forfeiture: 19 Cyc., 938; 54 S. C., 599; 57 S. C., 368; 46 & C., 546; 43 S. C., 26; 70 S. G, 77; 52 S- G, 224; 68 S. C., 384; 55 S. C., 450; 54 S. C., 374; 70' S. C., 295; 57 S. E-, 3471 Additional assurance clause does not render policy void: 52 S. C., 224. Nor is it contrary to public policy: 57 S. C., 347; 68 S. C., 387; 19 Cyc., 703.</p>

<p>Before DantzlEr, J., Florence, December, 1908.</p> <p>Action by A. H. Williams, trustee in bankruptcy of- W. ’ B. Gause, against W. B. Gause, Clinton. Gause, and others. From Circuit decree, defendants appeal.</p> <p>cite: Rules of construction: 13- Cyc., 619, 601, 604, 605; 52 Ato. Dec., 479; 42 S. C., 345; 3 Strob. Eq., 66; 3 Rich. Eq., 158; 36 S. C., 38; 25 S. C., 289; 48 S. C., 18; 22 Am. St. R., £49; 24 Id., 438; 17 Id,, 575-; 10 S. C., 354, 414. The word “issue,” when used in a deed, is cdzmys a word of purchase: 23 Cyc., 364; 11 Ency., 376; 13 Cyc., 664; 2 Wash. Real Prop., 604; 11 Rich. Eq., 397; 16 S. C., 310; 1 Strob. Eq., 344; 40 S. C., 475.</p> <p>cite: As to the construction of the.first deed: 5 Rich. Eq., 356; 76 S. C.' 36; 69 S. C., 292; 76 S. C., 488. As to the construction of the second deed: Jarman .on Wills, 203; 10 S. C., 426; 1 Rich. Eq., 404; 48 S. C., 440; Dud. Eq., 83; 16 S. C., 311; 67 S, C., 307, 130.</p>

<p>Before DantzlEr, J., Marion, Ball term, 1908.</p> <p>Action by C. W. Sawyer against Marion County Lumber Co. Brom judgment for plaintiff, defendant appeals.</p> <p>cite: Injury was due to negligence of a fellow-servant: 39 S. C., 571; 75 S. C., 487; 71 S. C., 53; 74 S. C„ 419; 76 S. C., 539; 72 S. C., 264. Risk was obvious: 79 S. C., 502. Plaintiff was guilty of .contributory negligence: 46 S. C., 547; 34 S. C., 299; 72 S. C., 389.</p> <p>cite: Injury was caused by negligence of master: 39 S. C„ 511; 81 S. C., 15; 64 S. E., 146; 71 S. C., 53; 1 McM., 385; Lab. M. & S., sec. 564a; 76 S. C., 452. Plaintiff was not guilty of contributory negligence: 79 S. C., 502; 76 S. C., 452.</p>

<p>Before Prince, J., Colleton, Fall term, 1908.</p> <p>Action by C. K. Ackerman against Atlantic Coast Nine Railroad Co. From judgment for plaintiff, defendant appeals.</p>

Before Prince, J., Colleton, Fall term, 1908. Action by Ackerman & Reeves against Atlantic Coast Line Railroad Co. From judgment for plaintiff, defendant appeals on the following exceptions: 1. “Because the presiding Judge erred in admitting in evidence, over the objection of defendant’s attorneys, an alleged copy of the certificate of the Secretary of State, printed in the record in the United States Circuit Court of Appeals, In re R. O. Dunning and Bdward Myers v. Atlantic…

Before Klugh, J., Laurens, July term, 1908. Action by W. D. Barksdale against Charleston and Western Carolina Railway Company.

Before Hydrick, J., Charleston, February term, 1908. Action by J. D. Smith against Walter E. Nelson, carrying on business as Nelson & Munzenmaier. From order striking out complaint, plaintiff appeals. cite: Suit may be maintained on lost negotiable instrument: 2 Speer, 193; 2 N. & McC., 464; 2 Bail., 427; 2 Strob., 160; 2 Hill Eq., 371; Dud. Eq., 85; 25 Cyc., 1608; 15 Fed.

<p>Before Memminger, J., Charleston, January, 1908.</p> <p>Action by Christ Church, Charleston, E. Valeria Wylie et. al. against Sophia H. M. Eishburne, R. G. O’Neale et al. From Circuit order appointing a receiver, defendant, Sophia H. M. Eishburne, appeals.</p> <p>cites: Pacts here do not warrant appointment of receiver: Code of Proc., 285; 19 S. C., 293; 27 S. C., 408; 23 Ency., 1052; 4 111. App., 270'; 2 Kay & J., Ill; 34 S. C., 77; 32 S. C., 134.</p> <p>cite: It is proper to appoint receiver of rents in partition suit: 36 S. C., 137; 30 Cyc., 241; 12 Ency., 1173.</p>

Before MemmingXr, J., Spartanburg, January, 1909. Indictment against R. E. Daniel and E. E. Oulla. From sentence, defendants appeal. cite: What constitutes the offense: 77 S. C., 391; Clarke’s Crim. E-, 381; 13' Ency., 834; 83 Am. Dec., 731; 19 Cyc., 393; 10 L. R. A., 303'.

<p>Before Watts, Clarendon, September, 1908.</p> <p>Action by J. W. Touchberry against Northwestern Railroad Company. Rrom order sustaining demurrer to complaint, plaintiff appeals.</p>

Before Watts, J., Clarendon, September, 1908. Action by E. J. Touchberry against Northwestern Railroad of South Carolina. Erom order sustaining demurrer, plaintiff appeals. cites: Railroad must use reasonable care and skill in construction: 36 S. C., 93; 72 S. C., 114; 4 Ency., 940; 13 Ency., 692; 67 S. C., 181; 34 S. C., 66; 47 S. C., 464, 487; 25 S. C., 30; 28 N. W.,-633; 66 S. C., 302; 71 S. C., 160; 39 S. C., 472; 41 Minn., 384; 38 Am.

Before DrVorB, J., Greenville, December, 1908. Action by Eliza F. Buist against J. Hudson Williams et al. From Circuit order, J. Hudson Williams and William B. Williams appeal. The latter cite: Plaintiff can not nozv contest the construction of the trust clause first adopted by her: 51 Am. St. R., 414. Amendment changing substantially the claim will not be allowed during trial: 80 S. C.. 213; 64 N. E. R., 426.

Before Klugh, J., Spartanburg, Fall term, 1908. Action by I. M. Turbyfill, administrator of Belinda R. Hand, against Atlanta and Charlotte Air Line Railway Company. From judgment for plaintiff, defendant appeals. cite: Contributory negligence of plaintiff will defeat a recovery: 72 S. C., 392; 78 S. C., 374; 81 S. C., 193. Presumption is plaintiff heard signals: Moore on Facts, secs. 191, 221, 160; 67 S. C., 367; 63 S. C., 271; 19 Am. St R., 96; 55 Am.

<p>1. Limitation of Estates. — A deed in the usual warranty form, except after the description of the property is this sentence, “this deed is not to go into effect until after my death,” conveys a fee to grantee with reservation of life estate to grantor.</p> <p>2. Evidence — Fraud—Declamations.—-That one having conveyed land had executed a mortgage on it to secure attorney’s fees in an expected attack on his title; that he had rented the'land to another; that his tax returns showed he had sold a part of the land, are made competent as declarations of a grantor in his favor, after introduction by the other side of evidence tending to show this grantor had procured the deed to him by fraud and stole it from the grantor’s possession to place it on record.</p> <p>3. Fraud — Deeds.—In a case between third persons, a grantor or a grantee in a deed, under which one of the parties claims, is a competent witness to impeach such deed.</p> <p>4. Ibid. — Ibid.—A deed duly executed but procured by fraud is binding on the heirs of the grantor in favor of a third person for value without notice of the fraud.</p> <p>5. Estoppel — Evidence.—May one who has parted with his title to land be permitted to say he had made a trade for a part of the land between his grantor and a third person and witnessed the execution of the deed and that his grantor did not ask his consent, but still recognized the land as his own?</p> <p>6. Deeds — Delivery—Negligence—Estoppel.—Where one executes a deed complete on its face and lacking only delivery to make it complete and negligently leaves it where the grantee could take it, and he does so and has it recorded, the grantor is estopped from denying its delivery.</p> <p>7. Ibid. — Ibid.—Limitation op Estates.- — A deed conveying a fee but reserving to grantor a life estate should be delivered at time of execution and not after death of grantor.</p>

Before Memminger, J., Laurens, Fall term, 1908. Action by R. J. Franks, administrator of Luther Franks, against Southern Cotton Oil Company and R. H. Hudgens. From judgment on verdict for defendant, under direction of Court, plaintiff appeals. No citations. Messrs. Dial & Todd cite: Reasons assigned by Judge in directing verdict are immaterial: 58 S. C., 70; 54 S. C., 340; 55 S. S. C., 1; 52 S. C., 36. Messrs.

Before Watts, J., Clarendon, September term, 1908. Action by S. W. Gowdy against Ellen Gowdy et al. From judgment on verdict, directed for plaintiff, defendants appeal. cite: Conversation between father and son should have gone to jury to show fraud: 75 S. C., 334; Kerr on F. and M., 385; 20 S. C., 503. Letter of mortgage competent to shozu payment: 19 S. C., 477; 3 S. C.; 577; 55 S. C., 347. Hove fraud may be proved: 23 How., 187; 17 Wall., 543; 16 Vt, 385. No citations.

<p>Before Gage, J-, Richland, October term, 1908.</p> <p>Action by Thos. J. Dyson against Southern Railway. From judgment for plaintiff, defendant appeals on following exceptions:</p> <p>1. “Excepts because his Honor erred in refusing defendant’s motion for a nonsuit as to the cause of action for punitive or exemplary damages, made on the ground that there was no evidence introduced to warrant any such damages in this case.</p> <p>2. “Excepts because his Honor erred in refusing to grant the motion to direct a verdict in favor of the defendant, upon the ground: ‘That the undisputed evidence showing that plaintiff, after crossing over two sidetracks and before reaching the main line of defendant, had an unobstructed view of the approaching train, if he had looked, for a distance sufficient to have seen the train and kept off the main line and prevented the accident, I charge you as a matter of law, the plaintiff failed to exercise the care required of him, and he can not recover in this action.’</p> <p>3. “Excepts because his Honor erred in charging the jury as follows: ‘The third act of negligence charges that the railroad failed to give signals. You heard the ordinances of the city of Columbia read. The ordinance prohibits the blowing of the whistle in the corporate limits. But I submit to you: Did they ring the bell? You heard the testimony. Was the bell rung so as to give notice to a man approaching along the highway that the train was coming? If it was not, the law makes that an act of negligence, and if it caused the injury or helped to cause the injury, one of the proximate causes of the injury, the railroad is liable. I submit that simple and plain issue to you: Was the bell rung? You heard the testimony. If it was not rung it convicts the railroad of negligence, and if that negligence was one of the proximate causes of the injury the railroad is liable. If it did ring, then that charge in the complaint goes out.’ The error being that such charge eliminated the defense of contributory negligence as well as the defense under Section 2139 of the Code, to wit: That if plaintiff was guilty of gross or wilful negligence contributing to the injury he can not recover, even if there was a failure to give the statutory signal.</p> <p>4. “Excepts because has Honor erred in charging the jury as follows: ‘How fast was that train running when that man was hit? If over four miles an hour, it was negligence, and if that caused him to be hit, the railroad is liable.’ The error being: (1) If said train was running over four miles an hour it was simply evidence tending to show negligence; (2) That such charge eliminated the defense of contributory negligence as well as the defense under section 2139 of the Code, to wit: That if plaintiff was guilty of gross or wilful negligence contributing to the injury he can not recover, even if there was a failure to give the statutory signal.</p> <p>5. “Excepts because his Honor erred in charging the jury as follows: T had some doubt, and still have doubt, whether it was my duty to submit wilfulness to you or not; but in view of the testimony of the old gentleman who talked so much, and the testimony of the engineer and the testimony of Mr. Chisolm, I have concluded to submit whether or not this thing, if done by the railroad, was it done wilfully ? There is no expression from the mouth of the railroad from which you can infer wilfulness, but I submit to you whether you can infer from its conduct whether it was wilful, under the circumstances which brought about this transaction. The testimony must satisfy you that it was wilful. The proof must show you that it was wilful. You can not infer this unless the proof shows it. If it was wilful, you are entitled to punish the railroad for wilfulness. Now, put that down and say how much.’ The error being: (1) There was no evidence to warrant punitive damages; (2) It was a charge upon the facts in violation of article V, section 26, of the Constitution of this State and prejudicial when his Honor referred directly to certain witnesses and their testimony.</p> <p>6. “Excepts because his Honor erred in not granting a new trial herein upon the first ground submitted by defendant, to wit: ‘(1) That there is but one inference to be drawn from all the evidence as to the duty on the part of plaintiff, to wit: that he did not look for any approaching train and failed to use the care required by the law, which failure caused or contributed as a proximate cause to his injuries.’</p> <p>7. “Excepts because his Honor erred in not granting a new trial herein upon the second ground submitted by defendant, to wit: ‘(2) That there was no evidence of negligence or wilfulness shown on the part of defendant which was a proximate cause of the plaintiff’s alleged injuries.’</p> <p>8. “Excepts because his Honor erred in not granting a new trial herein upon the third ground submitted by defendant, to wit: ‘(3) That the undisputed evidence shows that plaintiff was guilty of gross negligence which was a proximate cause of his injuries, and he ¿an not therefore recover in this action.’ ”</p> <p>cites: Traveler must take due care: 63 S. C., 218; 67 S. C., 367; 72 S. C., 392; 58 S. C., 4-91. Plaintiff was guilty of gross negligence: 63 S. C., 271; 138 Fed. R., 638; 95 U. S., 697; 77 S. C., 328; 81 S. C„ 11, 196; 78 S. C., 374.</p> <p>No citations.</p>

Before Kuugh, J., Union, January, 1909. Seven actions by Elizabeth Scott against William Vaughn and other defendants. From judgments for defendants, plaintiff appeals. cite: Previous gifts to the zuife were not pertinent: 8 Rich., 407; 11 Ency., 65, 3; 2 Hill Ch., 47; Spears Eq., 327; 22 S. C., 570; 30 S. C., 254; 43 S. C., 433; 2 Scrib. on Dow., 439, 440b. Construction of will: 59 S. C., 516; 2 Hill Ch., 46; Spears Eq., 322; 4 Rich.

Before-, Chesterfield, November term, 1908. Action by E. T. Watson against Paschall & Company. From order of nonsuit, plaintiff appeals. cite: Broker entitled to commissions: 4 Ency., 975; 44 S. C., 358; 204 U. S., 238. Telegraph company is agent of sender: 77 Mo., 672; 71 Ga., 760. cite: When broker’s commissions are earned: 22 Ohio, 69; 71 Ga., 608; 33 Mow. Pr., 440; 52 Neb., 440.

<p>1. Health Boards — Police Power — Jurisdiction.'—Principles of constitutional law governing health regulation by statute and municipal ordinance, powers conferred on boards of health, remedy by individuals for protection against invasion of personal or property rights by health officers not essential to public health, and the jurisdiction of Courts in reviewing the regulations and actions of health boards stated.</p> <p>Mr. Justice Hydricic thinks the principles are stated too broadly.</p> <p>2. Constitutional Law — Notice.—A board of health gives an individual notice and opportunity to be heard by serving on her its resolutions pertaining to her case, receiving her communications in response thereto, and hearing her physician state her views.</p> <p>3. Injunction. — Board of health held to be well within its duty in isolating a case of anassthetic leprosy, but the victim having made a prima facie showing that the manner of isolation determined upon is clearly beyond what is necessary to the public protection, the Court ought to enjoin it as arbitrary.</p> <p>Mr. Justice Hydricic dissents.</p> <p>4. Damages. — Members of boards of health are not personally liable for errors in their official conduct where they exercise their honest judgment.</p>

<p>Before Gage, J., Richland, January, 1909.</p> <p>Action by Joseph Dixon against Seaboard Air Line Railway. The Circuit order setting aside the verdict is:</p> <p>“The plaintiff is a young negro, and has lost one arm in the service of the' defendant company. That was in July, 1903.</p> <p>“The complaint alleges: That in the next month the parties made a contract whereby plaintiff agreed to release the defendant from all liability for said injuiy, and whereby defendant agreed to pay to plaintiff $50, and give plaintiff employment the rest of his days; that the release was made and the $50 was paid, but that the employment was ever afterwards refused. The action is for breach of this contract.</p> <p>“The answer alleges: That it was understood that the injury to plaintiff was due to his own negligence, and that the $50 paid to him was the sole consideration for the release executed by him to the defendant.</p> <p>“The plaintiff undertook, against objection, to prove a parole contract with reference to employment alleged to have been made when the release was signed.</p> <p>“The defendant’s objection was two-fold: First, that the transaction between the parties had been committed to writing in the release, and the terms of it could not be changed by word of mouth; second, that the parole contract offered to be proven was such an one, by the statute of frauds, as must needs be in writing.</p> <p>“Upon these issues of law I had doubts. I proceeded to hear the testimony, and in the event of a verdict against the defendant, I reserved the right to review the issues on a motion for a new trial.</p> <p>“The plaintiff had a verdict for $400, and the defendant now moves for a new trial, upon the ground stated, and some other grounds noted in the motion.</p> <p>“The release is constituted of a printed form, with some written matter therein.</p> <p>“The consideration of the release is expressed to be $50 paid by defendant to plaintiff; and the object of the payment is expressed to ‘forever discharge the (defendant) * * * from all claims * * * for * * * the injuries received by (Dixon), while uncoupling cars, getting arm mashed, causing amputation of same * * * while a brakeman,’ and the paper concludes, ‘the consideration hereinbefore referred io being in full compromise, satisfaction and discharge of all claims,’ etc. The italics are mine.</p> <p>“Had the language of the instrument been ‘the consideration hereinbefore referred to being the sole consideration for the execution of the release,’ the plaintiff’s parole testimony would be a plain variance of its terms. But the language which was used in the instrument is quite as broad as that which I have suggested, though perhaps not quite so accurate.</p> <p>“The two parties to the contract appointed the release as the memorial of the transaction; and it declares that the payment of $50 was in full compromise, etc., of all claims.</p> <p>“That ends the controversy; for there is no suggestion, by plea or by testimony, that the defendant deceived and seduced Dixon into signing the release. Lumber Co. v. Evans, 69 S. C., 100.</p> <p>“If there was another consideration, to wit: employment for Dixon during his life, then the release does not speak the truth; and that can not be shown.</p> <p>“I am, therefore, of the opinion that it was error to admit Dixon’s testimony tending to prove another consideration than the receipt of $50.</p> <p>“The other issue it is hardly worth while to consider, but it has been made, and I shall decide it.</p> <p>“The defendant was bound to plead the statute of frauds if reliance was had upon it. That was laid down tentatively in Súber v. Richards, 61 S. C., 393, but the rule is stated positively in the late case of Coward v. Boyd, 79 S. C., 138.</p> <p>“The answer did not plead the statute, and the statute may, therefore, not be considered; it is out of the case.</p> <p>“The judgment of the Court, therefore, is, that the verdict be set aside, upon the first ground hereinbefore considered, and a new trial be ordered.”</p> <p>From this order, plaintiff apepals.</p> <p>cite: Unfulfilled promise is ground for breach of contract action: 6 Thomp. on Neg., sec. 7375; IS At., 78; 3Ó Am. R. Cas., 606; 109 111., 120; 10 Am. & Eng. R. Cas., 224; 100 N. Y., 170; 58 S. C., 488; 35 S. E., 88. Parol evidence may be given of contract not all reduced to writing: 16 S. C., 352; 1 Mass., 297; 8 Rich., 35; 13 S. C., 332; 126 Wis., 253. Additional consideration to that expressed in writing may be shown: 72 S. C., 410; 1 McC., 514; 2 Hill, 404; 32 S. C., 160; Harp., 393; 2 Dev. on Deeds, 823; 79 S. C., 454.</p> <p>Mr. Craig cites: All previous agreements were merged into the writing: 21 Ency., 1078; 69 S. C., 93; 79 S. C., 134; 15 S. E. R., 198. And any further agreement can not be shown by parol: 61 S. C., 393; 79 S. C., 138; 34 N. E. R., 913; 30 Abb. N. Cas., 443; 60 S. C., 375; 29 Mo. App., 209; 83 Mo., 60.</p>

<p>Before Wilson, J., Barnwell, December, 1908.</p> <p>Proceeding to enforce mechanic’s lien by A. B. Metz against W. E. Critcher and W. B. Oswald. From judgment for plaintiff, defendant, Oswald, appeals.</p> <p>cite: Judgment should not have been entered on verdict: 12 S. C., 97; 17 S. C., 421; 21 S. C., 392; 35 S. C., 417; 52 S. C., 472. No privity between Oswald and Mets: 19 S. C., 5; 16 S. C., 147.</p> <p>cites: As to docketing: Code of Proc., 272; Code, 1902, 3025. Contract and receipts improperly admitted: Mcplwee v. Hutchinson, 10 S. C.; 9 Cyc., 735 (c).</p>

Before Gac-e, J., Richland, October, 1908. Action by A¥. Q. M. Berley against Seaboard Air Rine Ry. From order striking out portions of the complaint, the plaintiff appeals.

<p>1. Corporations. — Power op State to create and dissolve corporations, and right of State to prohibit or permit foreign corporations to do business within the State, stated.</p> <p>8. Foreign Corporations — -Tax—Constitutional Law. — Sections 303, 1808 and 1809, of Code of 1903, in so far as they require of foreign insurance companies doing business in this State a quarterly statement of their gross receipts and provide that the county auditor of each county in which they do business shall levy the regular taxes on the first of each year on the gross receipts for the past year, provide for a property tax on property not within the tax district when levied and are unconstitutional in that it is a taking of property without due process of law. But section 1809- provides for an assessment.</p> <p>3. Repeal op Statutes. — Section 303 of Code, 1903, is repealed by section 1809 of same Code in so far as the latter is inconsistent with the former, the latter being a part of a later statute.</p>

Petition by the State against A. W. Jones, Comptroller General, to Associate Justice Hydrick for writ of mandamus. The petition alleges that the respondent is ex officio a member of the State Board of Canvassers and the board had been duly called to meet on August 26th, at which time he met with the board. The board adjourned on that day to meet on the following day to consider certain protests then before the board.

<p>Before Prince, J., Barnwell, March term, 1908.</p> <p>Indictment against John B. Ross. From sentence, defendant appeals.</p> <p>cites: 10' Ency. P. & P., 485; Clark’s Cr. Proc., 154; 19 S. C., 140; 47 S, C„ 2; 3 McC., 385-; 20 S, C., 408; 8 S. E., 346; 99 Pa. St., 570 ; 4 Cr. Raw Mag., 807, 805; 100 U. S-, 13.</p> <p>cites: 11 Sup. Ct., 773-7 ; 140 U. S-,- 254; 68 Pac., 757; 61 N. Y. Supp., 326; 60 Id., 1033; 73 N. W., 579; 3 Hill, 61; 18 S. C., 323.</p>

Before Gary, J., Darlington, Fall term, 1908. Indictment against Augustus Tedder and Bright Tedder. Both defendants appeal from sentence. The charge is “Mr. Foreman and Gentlemen of the Jury: The charge is that of murder. You will observe that there are two defendants now on trial, the State having eliminated the third, so your investigation is as to these two defendants. “Murder is the killing of any person with malice aforethought, either expressed or implied.

<p>Deed — Assignment—Title.—The simple assignment on the back of a deed granting the right to grantee to enter upon a tract of land and to cut and remove therefrom such timber as he may select, and granting to him, his heirs and assigns the right and privilege to construct all necessary roads and rights of way for the purpose of cutting and removing such timber, does not carry to assignee the title to the timber, but invests him in equity with all the rights of grantee.</p>

Before Aldrich, J., Darlington, Spring term, 1908. Action by Mary N. Windham et al. against Cordelia Lafferty et al. From order of nonsuit, plaintiff appeals. Mr. Woods cites: On question decided: 54 S. C., 115; 57 S. C., 293; 63 S. C„ 270; 72 S. C., 439. No citation on point decided.

<p>Before Hydrick, J., Lancaster, October, 1908.</p> <p>Action by Elizabeth Broom et al. against Dock F. Helms. From order of nonsuit, plaintiffs appeal.</p> <p>No citations on point decided.</p> <p>No citations on point decided.</p>

<p>1. Appeal. — Exception alleging error in refusal to strike case from calendar on ground that there was no indorsement on the complaint indicating the calendar and issues, not considered because the “case” does not show what the indorsement was.</p> <p>2. Railroads — Passengers—Dabiages.—In view of the evidence warranting punitive damages it was proper to refuse request that plaintiff could only recover the cost of the conveyance from station at which she was left to her destination, although it is not clear there was any evidence tending to show plaintiff was warranted in incurring exposure of long ride on cold day without sufficient wraps.</p> <p>3. Ibid. — Ibid.—Pullman Company. — Where the porter of a Pullman car company awakes a passenger in a berth in his car and induces him to alight at the wrong station under representation that it was passenger’s destination, the railroad company is liable for any legal damages resulting from such breach of duty.</p> <p>4. Ibid. — Ibid.—Ibid.—Where a Pullman porter puts off a passenger at the wrong station and the railroad company’s agents wilfully refuse to stop the train and take him on again after discovery of mistake, the railroad company is liable.</p>

Before --•, J., York, November term, 1908. Action by D. L. Shieder 'against Southern Railway. From judgment for plaintiff, defendant appeals. Messrs. McDonald & McDonald cite: The facts in this case do not warrant punitive damages: 71 S.' C., 1; 73 S. C., 308; 35 S. C., 475, 505; 69 S. C.-, 444.' Evidence as to special damages improperly admitted: 1 N. & McC., 237, 334; 1 Bay, 273; 6 Rich., 310; 170 U. S., 468; 71 S. C., 1; 31 S. C., 49; 37 S. C., 40.

Petition in the original jurisdiction of this Court by E. H. Johnson, Ira B. Dunlap and T. O. Flowers, as the board of commissioners of public works in the city of Rock Hill, for writ of mandamus against Jno. T. Roddey, as mayor, and J. B. Johnson, J. M. Cherry, J. E. Parker, A. P. Dimeberger, J. E. Reid and E. W. Hall, as aldermen of the city of Rock Hill. ■ -■

Before Wilson, J., Sumter, July, 1908. Action by Sam Weinberg against Atlantic Coast Line Railroad Company, in magistrate’s court. From Circuit order affirming judgment of magistrate, defendant appeals. cites: Stipulations in bill of lading are binding on shipper: 6 Cyc., 400, 401, 404; 10 S. C., 353; 63 S. C., 414; 73 S. C., 389; 79 S. €., 159. Oral argument.

Before Wilson, J., Sumter, July, 1908. Action by Sam Weinberg against Atlantic Coast Riñe Railroad Company. From Circuit judgment affirming judgment of magistrate, H. R. B. Wells, defendant appeals.

<p>1. Carrier- — Freight.—Under claim for value of lost freight and freight charges, consignee may recover value of freight only.</p> <p>2. A deposition to be used in magistrate court need not be fastened with a seal across the flap of the envelope having an outward imprint, but it is sufficient if it be sealed with mucilage. That the title of the case is not indorsed across the flap is a mere irregularity which does not affect its validity.</p>

<p>Before Gage, J., Kershaw, November term, 1908.</p> <p>Indictment against Thomas Gardner. Defendant appeals from sentence.</p>

<p>Evidence — Judgment.-—In a criminal prosecution the record of a judgment in the equity jurisdiction of this Court, based on ex parte affidavits and failure of defendant to answer, is not admissible against accused as evidence of the facts stated therein.</p>

Petition in the original jurisdiction of this Court by Thos. M. Jellico for writ of injunction against Henry W. Connor, John H. Conlon and Wm. D. Clarke, as commissioners of State elections in and for the County of Charleston. No argument furnished Reporter.

Before Wilson, J., Richland, May, 1903. Two actions by E. A. Beall Co. (1) against Julian B. Weston et al., Erancis H. Weston and W. W. Weston; and (2) against George B. Weston et al., Erancis H. Weston and W. W. Weston. Erom 'Circuit order, setting aside foreclosure sale, plaintiff and defendants, Francis H. Weston and W. W. Weston, appeal. No argument furnished Reporter.

Before Watts, J., Clarendon, September, 1908. Action by D. L. Green & Co. against Atlantic Coast Line .Railroad Company. From judgment for plaintiffs, they appeal. cites: Punitive damdges should have been allowed: 76 S. C., 193. Plaintiff entitled to nominal damages: Fed. Cas., No. 17, 516; 35 111., 598; 108 Ala., 363; 36 T'enn., 575; 75 S. C„ 58; 9 A. & E. Ann. Cas., 1148; 53 L. R. A., 337; 81 S. €., 184; 77 S. C., 183.; 76 N. E., 1050; 80 S. C., 47; 76 S. C., 173. Messrs.

<p>Special damages can not be recovered in an action ex contractu unless the defendant had notice of the circumstances out of which they might reasonably be expected to result at the time the parties entered into the contract.</p> <p>Bourlahd v. By., 3 L. E. A. (N. S.), 1111, criticised.</p>

<p>Pleadings — Demurrer—Amendments—Counties.—An allegation that by all the aforesaid negligent acts of the defendant, its agents and servants the plaintiff has been damaged, on demurrer saves a complaint against a county for damages to a land owner caused by raising the grade of the highway, and it is within the discretion of the trial Judge to permit amendment as the cause of action is defectively stated.</p>

<p>1. Pleadings. — Holding by trial Court that respondent denied under oath the petition and supporting affidavits, reversed.</p> <p>2. Nuisance. — To constitute a nuisance it is only necessary that some part of the public resorts there to drink intoxicants.</p> <p>3. Ibid. — A social club whose main purpose is to provide liquors for its members at a special place at a price paid or agreed to be paid, is a nuisance under 25 Stat., 1.</p> <p>4. Ibid. — Injunction.—Under ordinary circumstances it is not proper to enjoin one from committing a nuisance at any place than the one alleged as maintained.</p> <p>5. Ibid. — Ibid.—Ordinarily an injunction against a liquor nuisance should issue if the petitioner has made out a case and the place is not abandoned until the eve of the hearing.</p>

<p>Before Klugh, J., Greenwood, June, 1908.</p> <p>Action by A. B. Hamlin against J. E. Moseley in court of Magistrate T. J. Lyon. From Circuit order affirming judgment below, defendant appeals.</p> <p>cites: Mortgage does not cover increase: 1 Cobb, on Ch. Mtgs., sec. 369; sec. 3002, Code 1902; 69 S. C, 528.</p> <p>cites: Mortgage covers increase: 6 Cyc., 1049; 171 U. S-, 620.</p>

<p>Trustee — Will.—The provision of a will directing a trustee “to pay such portion of said funds either principal or interest for the maintenance and education of the said grandchildren as he in his judgment and discretion may think necessary for them from time to time as their necessities may require,” limits the exercise of the discretion of the trustee to the payment of such items as his wards should need.</p>

<p>1. Mortgages — Constitutional Law. — Where a married woman acquired real property in 1881, under the act of 1870, the proceeds of a mortgage executed by her thereon is her separate property, and she had the right to use it in paying an unsecured debt of her husband for supplies used in farming the lands. Under these facts the Court will not consider whether section 2037 of General Statutes of 1882 is unconstitutional when applied to a married woman’s contract, in respect to land acquired by her under the act of 1870.</p> <p>2. Principal and Agent — Usury.—A banking company, which paid the money on a loan on execution of the notes and mortgages to another, afterwards holding the papers and collecting them for the mortgagee, is held to be the agent of the mortgagee, and a collection of 20 per cent, commissions by a local agent for himself and the banking company for effecting the loan is held to make the transaction usurious, as the knowledge of the agent with respect to the collection of commissions is imputable to the principal.</p> <p>3. Notes — Mortgages.—Where a note does not provide on its face for eight per cent, interest annually, hut the mortgage securing it does, the note may be enforced according to its terms, supplemented by the terms expressed in the mortgage. ,</p>

Before Prince, J., Anderson, June term, 1908. Action by Peoples’ Oil and Fertilizer Company, in its own behalf and as trustee of an express trust, against Charleston and Western Carolina Railway Company. From judgment for plaintiff, defendant appeals. Mr. Willcox cites: Oil company was not entitled to recover for benefit of insurance companies: él S. C„ 408; 76 S. C., 101; 6 S. C., 184; Pom. Code Rem., sec. 76; 30 Cyc., 47, 49; 15 Ency. P. & P., 707, 710, 712.

Before Klugh, J., Greenville, .April, 1908. Action by Mettie Z. Jenkins and Nora Maj*- Jenkins against J. W. Jenkins, Jr., et al. Prom Circuit order, allowing claim of J. H. Jenkins, plaintiffs appeal. cite: Order not appealed from can not be reviewed under notice to sustain: 51 S. C., 313q 54 S. C., 526. Circuit Judge had power to permit service of case and exceptions after time: 49 S. C., 374. Burden was on those presenting the note throughout: 33 S. C., 190’; 1 Green.

Petition in the original jurisdiction of this Court by John A. Chase against H. K. Gilbert, mayor, and A. A. Cohen et al., constituting the town council of the city of Florence, for injunction. cites: 83 S. C, .136, and cases therein cited. cite: 72 ■&. C., 532; 47 S. C., 418; 75 S. C, 550.

Before Watts, J., Clarendon, September, 1908. Action by D. O. Rhame against Southern Express Company. From order affirming judgment of Magistrate A. J. Richbourg, defendant appeals. cite: Constitutional question may be raised in petition for rehearing: 207 U. S., 416. ' The penalty act is unconstitutional: 196 U. S-, 194; 201 U. S., 321. Oral argument.

<p>Before DbVore, J., Greenville, November term, 1908.</p> <p>Action by N. H. Harris against Greenville Traction Company. From order of nonsuit, as to wilfulness, plaintiff appeals.</p> <p>cites: Nellis St. Surface R. R., 343, 344, 383, 384, 313, 315; 81 S. C., 340; 35 S. C., 132; 79 S. C., 177; 56 S'. C., 94; 66 S. C., 533; 77 S. C., 370>; 76 S. C., 378; 52 S. C„ 344; 44 S. C„ 316; 45 S. C., 46, 183, 283; 46 S, C., 104.</p> <p>cite: 79 S. C., 211.</p>

Before Hydrick, J., Colleton, March, 1908. Action by T. M. Herndon against Colleton County. From Circuit order, affirming judgment of Magistrate H. A. Cummings, defendant appeals. cite: Where there is no evidence to support the verdict' this Court may review findings below: 57 S-. C., 280; 52 S. C., 371; 65 S. C., 610; 53 S. C., 215; 61 S. C., 490'.

<p>1. Evidence — Surety.—That one was in charge of the collection department of a firm is sufficient to admit evidence of a demand on him by surety that his principal foreclose the chattel mortgage securing the security debt.</p> <p>2. Surety. — Unuess a creditor has notice that an accommodation maker is a surety, he can not be discharged by acts of the creditor which would affect a surety only.</p> <p>3. Ibid. — Mere delay or omission to pursue the principal debtor without such demand will not discharge the surety.</p>

Before Dantzi.fr, J., Chesterfield, December, 1907. Action by John B. Brown against Seaboard Air Bine Railway. From judgment for plaintiff, defendant appeals. The former cite: As to power of Court to allow the amendment: 41 S. C., 89; 31 S. C., 388; 39 S. C., 514; 43 S. C., 230; 40 S. C., 519. Allegation of fire originating on plaintiffs land is not supported by proof of communication from right of zvay: 41 S. C., 90; 40 S. C., 519.

<p>Before Prince, J., Beaufort, September, 1908.</p> <p>Indictment by Town of Ridgeland against William Gens. Prom judgment of Circuit Court, affirming judgment of town council, defendant appeals.</p>

<p>New Trial. — An appeal from an order granting a new trial will not be entertained except in a case in which judgment absolute might be rendered by this Court.</p>

<p>Before Keugh, J., Cherokee, November, 1908.</p> <p>Action by D. L. Vassey against W. L- Spake. From order sustaining taxation of costs, defendant appeals.</p> <p>cite: 20 S. C., 483; 27 S. C., 221; Code 1902, 3096; 18 Stat, 449; 59 S. C., 225; 54 S. C., 430'.</p> <p>The former cite: Code 1902, 3096; Code of Proc., 323; 70 S. C., 373; 71 S. C., 327.</p>

Before Dantzi/ER, J., Sumter, April, 1908. Action by Henry A. Rodgers against Thomas E. Hodge. From judgment for defendant, plaintiff appeals. cites: It is error to refuse view of premises to jury: 1 Ency., 222, note 1. No error in refusing view: Code 1902, 2950; 45 S'.

Before DeVore, J., Colleton, March, 1909. Action by Holton Hill against Ben Garrett, in court of Magistrate R. G. W. Bryan. Prom Circuit order, affirming magistrate’s judgment, defendant appeals. cites: Magistrate acquired no jurisdiction of the person of defendant: Code of Proc., sec. 88, sub. sec. 19; 43 S. C., 173; 29 S. C., 31; 68 S. C., 583; 62 S- C., 293. No proof of damages: 57 S. C., 189.

Before AYatts, J., Hampton, March, 1909. Action by Addie and H. S*. Crosby against Seaboard Air Line Railway. Prom Circuit order, refusing motion to amend complaint, plaintiffs appeal. Messrs. Griffin and Tracy cite: Error to refuse motion: 81 S. C., 571. Rule 2f does not apply: 81 S. C., 31; 82 S. C., 1. The latter cite: Under Rule 2J judgment of Supreme Court ended case: 82 S. C., 1; 78 S. C., 381; 69 S. C., 331; 68 S. C., 99; Code of Proc., 12; 22 S'.