Volume 84 — South Carolina Reports

Before Watts, J., Fairfield, Action by L. C. Lyles against Western Union Telegraph Company. From judgment for plaintiff, defendant appeals. cite: Nothing in the message to give notice to company of results of delay: 73 S. C., 430, 383. Company may rely upon its reasonable rules without special notice to sender: 71 S. C., 30-8. No testimony as to waiver; error to submit that issue to jury: 29 S. C., 152; 75 S-. C., 529; 15 S. C., 95.

<p>1. Alimony. — Upon the showing here made there was no error in trial Judge in holding' a prima facie case had been made out for temporary alimony and counsel fees, and there was no. abuse of discretion in so holding.</p> <p>2. Ibid.- — Jurisdiction—Chambers.—Such an order may he made at chambers.</p> <p>3. Ibid. — Security.—Defendant in alimony suit cannot demand as matter of right that plaintiff he required to give an undertaking to restore to defendant temporary alimony and counsel fees in case it should be finally held she was not entitled to them.</p> <p>4. Constitutional Law. — Due Process. — An order issued by a court of competent jurisdiction after notice and opportunity to be heard with right of review according to the settled course of procedure in such matters is due process of law.</p>

Before Gage, J., Richland, Action by Lizzie Súber and Gracie Nash, minors, by guardian, against James Sterling Nash et al. From judgment sustaining demurrer to' complaint, plaintiffs appeal. The plaintiffs are legatees: 11 Rich. Eq., 554; 26 S. C., 450'. Devise to a class: 29 S. W., 315; 9 S. W., 775; 2 L. R. A. (N. S.), 582; 27 N. E., 346; 137 Mass., 409; 166 Pa., 300; 145 Mass., 517; 155 Mass., 415; 1 DeS.

<p>Before Watts, J., Barnwell, Winter term, 1909.</p> <p>Action by Julia A. and Jlenjamin Norris against the Southern Railway — Carolina Division. From order of nonsuit, plaintiff appeals'.</p> <p>cites: 74 S. C., 332; 78 S. C., 552; 6 Ency., 602; 31 E. R. A., 551; 17 E.' R. A., 571; 38 E. R. A., 427; 16 E. R. A., 627; 5 Ency., 533; 3 Thomp. on Neg., 544; Hutch, on Car., sec. 548; 17 Am. R., 504; 21 A. & E. R. R., 428; 28 Id., 398; Moore on Car., 426.</p> <p>cites-: 78 S. C., 552; 52 S. C., 323; 27 S. C., 325; 74 S. C., 332; 93 N. Y„ 127; 16 R. 'R. A., 630; 105 U. S., 252; 140' Mo., 683; Ray. Neg., 133-4; Webb-Pollock Torts, 45-7; 47 L. R. A., 123; 53 Miss., 200; 6 Cyc., 602; 5 Ency., 553; 93 Va., 44; 2 A. & E. R. R. Cas., 441; 87 Mo., 417; 32 R. R. A., 794; 67 Miss., 376; 38 R. R. A., 431; 30 S. C., 218; 77 S. C., 436.</p>

Before Prince, J., Anderson, Proceeding by State to estreat the recognizance of Fannie Bridges and W. W. Williams. From Circuit order dismissing the rule, the State appeals. Mr. Wolfe cites: Magistrate may bail for .preliminary: Sec. 24, Code of Proc. Such bail-bonds estreated in Court of General Sessions: Sec. 85, Code of Proc. Court of General Sessions has exclusive jurisdiction in such cases: 67 S. 'C., 203.

<p>Parties. — ONE co-tenant may bring an action under section 140 of Code of Procedure for possession of land against a stranger in his own name in behalf of himself and for the benefit of those deriving title in common with him', where the parties are very numerous and it is impracticable to bring them all before the Court.</p> <p>Bannister v. Bull, 16 S. C., 220, and Wilson v. Kelly, 30 S. C., 483, distinguished from this case.</p> <p>Me. Justice Hybrick dissents.</p>

<p>Before Watts, J., November term, 1906, and Kutjgh, J., March, 190'8.</p> <p>Action by Martha E. Bolton against James A. Hendrix et al From judgment for plaintiff, and order reversing taxation of costs, defendants appeal.</p> <p>cite: Actual damages not recoverable in this action, except on proof of wilful tort: 61 S. C., 170 ; 78 S. C., 419; 80 S. C., 47. Costs should not exceed amount of recovery: Code 1902, 3096.</p> <p>cites: Plaintiff entitled to actual damages: 'Code of Proc., 186a; 60 S. C., 48; 61 S. C., 170; 64 S. C., 104; 65 S- C., 125; 72 S. C., 257: 73 S. C., 271. Plaintiff is entitled to full costs: Code of Proc., 323.</p>

Before Wilson, J., Clarendon, Action by Northwestern Railroad Company of South Carolina against S. M. Colclough. Prom refusal to grant restraining order against plaintiff, defendant appeals. cites: Defendant cannot be ousted of possession by temporary restraining order: 144 U. S., 119 ; 4 S. C., 388 ; 27 S. C., 408.

<p>1. Evidence — Poverty—Release.—On the issue whether the release from damages for personal injuries was fairly obtained, evidence tending to show the poverty and necessitous condition of releasor and his family at time of its execution is competent.</p> <p>2. Ibid. — Insanity—Ibid.—There was sufficient evidence here as to the mental unsoundness of releasor to carry to the jury the issue whether releasor was mentally unsound at time of execution of the release.</p> <p>3. Release — Tender.'—Where a release expresses as its consideration certain amounts to be paid releasor and his doctor and nurse bills, tender, before action for damages, of the amount paid releasor and offer to pay the other amounts paid by releasee as soon as ascertained, demand having previously been made of the amount so paid, is sufficient.</p>

Before -, J., Greenville, Indictment against Arthur Johnson. From sentence, on verdict of guilty, defendant appeals. cites: What is necessary to show intent to ravish: Roscoe’s Cr. Ev., 811; 23 Ency., 864; 83 S. W., 689. Cases in which evidence held insufficient: 90 Ala., 624; 77 A. D., 336; 12 Tex. App., 194; 73 Ia., 255; 86 N. C., 658; 67 Miss., 356; 34 S. E., 135; 49 S. E., 336.

<p>Petition in the original jurisdiction of this Court by J. L. Gunter el al. against J. A.. Gayden et al. for writ of certiorari.</p>

Before Dantzler, J., Horry, Action by Simon Boyd against Harry C. Trexler and Trexler Lumber Company. From order dissolving temporary injunction, plaintiff appeals. cite: On zvhat grounds an injunction will be granted: 54 S. C., 430; 69 S. C., 159; 27 S. C., 514; 60 S. C., 391; 8 Rich. Eq., 46; 10 S. C., 470; 39 L. R. A., 711.

Before Aldrich, J., Hampton, Action by Eliza Lewis against Western Union Telegraph Company. From order directing a verdict, plaintiff appeals. cites: As to duty to deliver: 77' S'. C., 181; 78 'S'. C., 507. Delay raises presumption of negligence: 70 St C., 83. If there is wilfulness, plaintiff may recover: 77 S. C., 61; 73‘ S-.

<p>Before Wilson, J., Sumter,</p> <p>Action by J. W. Mc'C'oy against Atlantic Coast Line Railroad Company, in court of Magistrate H. L. B. Wells. From Circuit order affirming judgment of magistrate’s court, defendant appeals.</p> <p>cites: Carrier not liable if not negligent: 77 S'. C., 78; 76 S. C., 237. The rule as to end of liability as carrier and beginning of liability as warehouseman does not apply to baggage: 6 Cyc., 672. When liability as carrier ceases: 77 S. C., 78.</p> <p>cites: Carrier is liable if trunks are held for later transportation: 76 S. C., 237; Battle v. R. R., 70 S. C.</p>

Before Aldrich, J., Aiken, 'Action by Rock R. Bolton against Western Union Telegraph Company. From judgment for plaintiff, defendant appeals. cite: Error in address raises no presumption of wilfulness: 82 S. C., 87. Error to send issue of wilful tort to jury: 72 S. C., 116, 256; 73 S. C., 522; 74 S. C., 68; 75 S. C., 211, 186; 77 S. C., 122, 152, 526; 78 S. C., 114; 82 S. C., 87.

Before Wilson, J., Sumter, Action by F. R. King against Western Union Telegraph Company, in court of Magistrate H. R. B. Wells.

<p>Limitation op Estates. — A deed conveying land in trust “to and for the separate use of H. for and during her natural life * * * and from and immediately after her death in trust for the lawful issue of said H. living at the time of her death taking per stirpes and not per capita as tenants in common and not as joint tenants,” carries a fee simple estate to the children of H., hut their children have no interest in the land.</p>

<p>Before Memminger, J., Greenwood,</p> <p>Petition by John Adams for writ of certiorari against W. G. Austin, magistrate. From order refusing the writ, petitioner appeals.</p> <p>cites: Jurisdiction must be .acquired on return day: Alderson on Jud. Writs & Proc., sec. 99; 68 S. C., 383; 24 Cyc., 524; 13 S'. C., 198. Magis■irate loses jurisdiction by adjourning case to'uncertain day: 25 Am. Dec., 546; 24 Cyc., 488, 497, 636, 579; 1 Den., 160; 17. S. C., 75; Chev., 5; 31 Wis., 536-; 44 Wis., 593; 91 Am. Dec., 451; Code-Proc., 393. Notice of trial day must be -given: 74 S- C., 443; 6 Ency. P. & P., 244; 17 S. C., 75; 13 S. C., 210; 36 Am. D., 693. There was no lazvful continuance: Code of Proc.,-71; 31 Am. R., 458; 29 S» C., 33; Code of Proc., sec. 71, sub. 12; 24 Cyc., 519; 43 S-. C'., 173. Leaving a chasm in the proceedings amounts to continuance: 2 Bay, 416; 3 McC., 281; 1 N. & McC., 173; 79 S. C., 87; 20 Ency. P. & R, 1179.</p> <p>cites: Magistrate has authority to continue a case: 79 S-. C., 87. Return may be made after return day: 3 Pinney, 320; 13 Kan., 366; 18 N. Y. Supp., 317.</p>

<p>1. Carrier — Freight—Penalty—Receivers.—Under a bill of lading of household goods valued at $5 per one hundred pounds, the limit of recovery of damages to a part of the shipment is the aggregate value of the shipment at the stipulated valuation.</p> <p>2. Ibid. — Ibid.—Ibid.—Ibid.—The penalty for failure to adjust claims for damages to freight under 24 Stat., 81, may be collected of receivers of a railroad company appointed by United States'Court, and suit may be brought without leave of the Court first had.</p>

Before Wilson, J., Clarendon, Petition for writ of prohibition by defendant, Joseph N. Hodge, against plaintiffs, Joseph Holladay, by guardian, Minnie Simpson and Magistrate J. M. Woods. Prom order granting the writ, plaintiffs appeal. cites: Prohibition is not proper remedy: 10 S. C., 303; 1 S. C., 46, 861; 9 Rich. L-, 100, 292; 41 S. C., 29; 72 S. C., 96; 1 N. & McC., 501; 23 Ala., 94; 33 Ark., 191; 29 Pac., 516; 43 Pac., 568; 2 Nev., 75; 2 Hill, 367; 36 Barb., 341; 29 How.

<p>Before-, J., Chesterfield,-.</p> <p>Action by M. C. Kelly against United States Health and Accident Insurance Company. Erom judgment for plaintiff, defendant appeals.</p> <p>cite: Failure of insured to make full disclosure avoids policy: 3 Cooley on Ins., 207, 296; 1 May on Ins., 630; 61 S'. C., 342; 106 N. W., 860; 64 At. R., 1107; 81 S. W., 340; 87 N. Y., 821; 53 S. E., 354; 78 S, C., 440; 54 S. C., 371. Jumping from moving train is obvious risk of danger: 46 S. C., 547; 83 S. W., 276; 80 Ga., 541; 104 Mich., 634; 65 S. W., 236; 15 Blatch., 216; 78 Fed., 754; 36 E. R. A., 52.</p>

<p>Motion in this Court in case of Mary B. Williams against R. C. Newton, as trustee and executor, et al., to dismiss the appeal of the defendants.</p>

Before Wapts, J., York, Action by B. M. Faris, W. F. Boyd and W. H. Windel, committee for themselves and others, members of Flint Flill Baptist Church, against American Telephone and Telegraph Company. From judgment for plaintiffs, defendant appeals. Messrs.

Before Watts, J., Clarendon, Action by Joseph Holladay, by guardian, against Joseph N. Hodge and Martha Hodge. From order appointing receiver, defendant appeals. cites: Another action pending defeats this action: Code of Proc., 165; 53 S. C., 155; 15 Ga., 370'; Hob., 137; 35 N. E., 393; 1 Cyc., 33, 761-3; 51 S. C., 134. Complaint does not show plaintiff had any apparent right to property: 79 S. C., 103; 18 S. C., 513.

<p>1. Carrier — -Passenger—Baggage—Wilftjlness.—Under the evidence in this case, the issue of wilfulness in servants of carrier in handling a trunk, in a narrow way through which passenger was to go, so as to fall on her, held to have been properly sent to the jury.</p> <p>2. Ibid. — Ibid.—Negligence.—Nor does the evidence show the injury was due solely to the negligence of the passenger.</p> <p>3. Charge.- — In refusing motion for nonsuit for punitive damages, statement by the Court, “I will not give my reasons in presence of the jury,” is not an intimation on his part that there was evidence warranting a verdict" for punitive damages.</p>

<p>1. Pleading — General Denial — Baggage—Warehouseman. — Under</p> <p>general denial in action for loss of baggage evidence that at time of fire the carrier held the baggage as warehouseman and it was destroyed without negligence on its part, is inadmissible, and it is not error to refuse motion, after evidence is in, to amend answer by setting up defense of warehouseman, especially after it had been offered opportunity to amend before trial on terms.</p> <p>Ü. Charge. — Remarks of Judge during taking of evidence, that jury knew pretty well why the wife would give the check for her baggage to her husband, is not an expression of an opinion on a material fact.</p>

<p>Before DeVorE, J., Greenville,</p> <p>Action by Mary C. Berry against City of Greenville and City Council of Greenville. From judgment for plaintiff, defendants appeal.</p> <p>cites: As to charge on facts, 47 S. C„ 533 ; 51 S. C., 460; 61 S. C„ 556. Street may not be in good condition, but yet free of defects: 43 S. C., 399.</p> <p>cites: One injured is only required to use ordinary care in procuring the services of a physician: Watson on Damages, sec. 136, 166, note 1.</p>

Before Gage, J., Kershaw, Action by Stephney Lee against Northwestern R. R. Co. From judgment for plaintiff, defendant appeals. The jury were instructed as follows: “The plaintiff and the defendant request me to charge you these propositions, and they will be the greatest part of my charge.

<p>1. Motion's to Vacate Judgments. — In passing on a motion to vacate a default judgment and to permit the defendant to interpose a defense which he only discovered after judgment entered, it is not proper for the Judge to decide the motion on the greater weight of the evidence from all affidavits submitted, but he is only required to determine if the movant makes out a prima facie case.</p> <p>3. Ibid.- — Akpeae.'—That the notice of motion did not state the grounds on which the Court would be asked to vacate the judgment will not be entertained here, unless the record shows the point was made on Circuit. Nor does it matter whether the assignee of the judgment is before the Court.</p> <p>3. Ibid. — Ibid.—The assignor of a default judgment is the proper party to a motion to set it aside to permit the defendant to interpose defenses discovered after rendition of judgment, and the judgment is not a bar to such motion.</p> <p>4. Ibid. — A defendant is not presumed to have notice of a default judgment until entered, and a motion to set it aside noticed within one year after entry is within time.</p>

<p>Before Gary, J., Richland,</p> <p>Controversy, without action, by A. R. Stewart against A. G. Morris. Prom Circuit judgment, defendant appeals.</p> <p>cites: Assignment for term of years: 24 Cyc., 972. Meaning of “period:' 6 Words & Phrases, 5302; 8 Id., 6917. Renezual clause passes to assignee: 'Cyc., 996-7.</p> <p>cite: Intention of parties must govern: 9 Cyc., 577, 579, 582; 19 S'. C., 124; 19 R. R. A., 456; 14 S. C„ 165; 22 S. C., 287, 454 ; 24 S. C., 497; 36 R. R. A., 285. Meaning of “subject to:” 7 Words & Phrases, 6712; 4 Ohio St., 445; 69 S. W., 635; 71 App. Div. N. Y., 574; 47 Hun., 246. Meaning of “provisions:” 6 Words & Phrases, 5732. Nature and objects of the agreements and situation of the parties: 9 Cyc., 587; 54 R. R. A., 247; 56 R..R. A., 2'46; 23 S. E-, 692. Contract between plaintiff and defendant is an assignment of a leasehold interest: 18 Ency., 656; 15 R. R. A., 236; 1 Wood Rand. & T., Am. Ed., pars. 258, 239, 327; 33 R. R. A., 607; 86 Am. Dec., 394. No particular words are necessary to create a covenant: 8 Ency., 55; Wood’s Rand. & Ten., sec. 301. Provision for annual rental is a covenant to pay rent: 8 Ency.,’ 58; Wood’s R. & T., sec. 302; 3 P. & W., 461; 1 B. & C., 410; 76 E. C. R, 765; 2 Bay, 108, 195; 24 Ind., 23. Such covenant runs with land and is binding on assignee: 6 Rich., 208; 3 P’. & W., 461; 27 Barb., 104; 8 E. C. R., 113; 28 S'. E., 696; 33 R. R. A., 612; 15 R. R. A., 236; 76 Am. Dec., 481; 1 Gray, 325; 20 Bard., 269; 86 Am. Dec. 394; 24 Ind., 23; 14 Wis., 272; 44 Tex., 415; Wood’s B. & T., secs. 302, 333, 336. Assignee is bound to pay rent in absence of covenant: 99 N. C., 551; 1 Gray, 325; 44 Tex., 413; 61 Tex., 131; 12 Mo. App., 579; 90 Ill., 312; Taylor’s L. & T., par. 16; 8 Bush., 74; 18 Ency., 667.</p>

Before Shipp, J., Lexington, Fall term, 1908. Action by Baisy Glenn and b- b. Glenn against Western Union Telegraph Company. From judgment for plaintiff, defendant appeals. Messrs. Geo. H. Pearons and Nelson cite: Issue of wilfulness should not have been sent to jury: 73 S. C., 520; 77 S'. C., 148; 79 S'. C., 109; 82 S. €., 87 ; Jones Tel. & Tel. Cas., secs. 296-8; 18 Am. St. R., 153. Prror to refuse request as to free delivery limit: 74 S. C., 300; Jones Tel. & Tel.

Before Wilson, J., Orangeburg, -, 1908. Action by A. Z. Smith & Co. against Southern Railway Company, in court of Magistrate D. B. Berry. From Circuit order modifying judgment of magistrate, defendant appeals. cite: Claim must be Med with agent of carrier at destination: 71 S. C., 273; 80 S. C., 527; 72 S. C., 483; 79 S. €., 299, 254; 78 S. C., 55. Suit must be brought when cause of action arose: 81 S- C., 387.

<p>1. Evidence — Carrier.—Declarations of station agent of a carrier of passengers as to the time of the arrival of a train and his posting bulletins to that effect is admissible on the issue whether the carrier had breached its duty to exercise proper care in carrying a passenger to his destination with promptness.</p> <p>2. Carriers — Passengers.—An instruction to the effect that the agent of the carrier may guarantee a schedule notwithstanding the passenger had notice the agent had no authority to do so is misleading, as a passenger takes passage subject to such delays as are not caused by the negligence or wilfulness of the carrier.</p> <p>3. Ibid. — Ibid.—Negligence—Wilfulness.-—Evidence of long delay in making schedule connections resulting in expense and loss of time to a passenger raises a presumption of negligence, but in this, case the carrier has explained the delay in such way as to show there was no wilfulness in it.</p> <p>Miller v. Ry., 69 S. C., 125, distinguished from this case.</p>

Before Klugi-i, J., Cherokee, Action by W. P. Love against M. J. Turner. From order dismissing complaint, plaintiff appeals. cite: Defendant is estopped in saying there was no judgment appealed from: 59 S. C., 557; 42 S. C., 183; 14 S. C., 572. cites: Time runs from date of verdict: 67 S. C., 53. Does pendency of appeal operate as bar? 1 Cyc., 30. Verdict does not mean judgment: 11 Rich., 24; 5 Strob., 141.

Before Gage, J., Colleton, Action by Mamie Alexander against A. H. Herndon. From judgment for plaintiff, defendant appeals. Mr. Griffin cites: Reservation of timber could be shown by patrol: 34 Vt., 480 ; 1 Ency., 436, 438; 7 Ency., 443, 447; 1 Green, on Ev., sec. 296; 16 S. C., 35; 3 S. C., 332; 21 S. C., 400; 24 S. C., 594; 26 S. C., 80; 41 S. C., 163; 53 S. C., 548; 56 S. C., 480*; 57 S. C., 60; 59 S. €., 467; 61 S. C., 166.

<p>1. Evidence. — An allegation that certain evidence was taken at a preliminary hearing does not bind the Court to admit it.</p> <p>2. Charge — Malicious Prosecution. — In an action for malicious prosecution an instruction that jury would be at liberty to infer malice from want of probable cause is correct, but is so nearly a charge on the facts that this Court thinks it the better practice not to use it.</p> <p>3. Ibid. — Ibid.—There is no error in using the term “reasonable cause” for “probable cause.”</p>

<p>Carrier — Freight.'—A cohstghee has no cause of action against a carrier for failure to deliver goods consigned for sale by him as agent of the consignor, the title being in the consignor.</p>

Before Klugi-i, J., Spartanburg, Action by Furman Rookard, adm. of Daniel Brown against Atlanta and Charlotte Air Dine Railway Company. From judgment for plaintiff, defendant appeals. cite: Uvidence as to settlement inadmissible: 74 S. C., 143; 77 S. C., 553; 75 S. C., 170. Declarations of agent after transaction do not bind principal: 4 S. C., 153; 5 S. C., 358; 17 S. C., 519; 19 S. C., 354; 27 S. C., 64; 53 S. C., 448; 62 S. C., 129.

<p>Res Judicata. — Issues adjudicated in a suit to enjoin a citizen from assessing damages under a statute against a municipality for damages to abutting property by changing the grade of the street are res judicata in the trial of assessing damages.</p> <p>Greenville v. liarle, 64 S. C., 443, affirmed.</p>

<p>Breach of Contract — Statute of Frauds — Parties.—The vendee of real property of one authorized by the owner in writing to sell, and binding "himself to convey, may maintain action for damages for breach of contract against the owner alone, and it is within the statute of frauds to prove the written authority of the agent to sell and the contract of sale by the agent in writing signed by himself either as agent or as an individual. In the latter case the agency may be proved by parol.</p>

Before Krugi-i, J., Union, Action by C. G. Humphries against Union and Glenn Springs Railroad Company. From judgment for plaintiff, defendant appeals. cite: Brror to admit evidence of wealth of stockholder: 77 S. C., 409. cite: It is negligence to make excavation near highway: 55 Am. R., 88; 1 Am. Neg. R., 81; 1 Wood on Nuisances, sec. 271; Cool, on Torts, 792; 62 S. C., 325. Plaintiff not guilty of contributory negligence: 5 Thomp. on Neg., sec. 6304.

Before Kluch, J., Laurens, Action by Virginia-Carolina Chemical Company against G. Wash Hunter, Sarah Ellen Evans and Cole. L. Blease. From order appointing a receiver, defendants appeal. cite: Pacts here do not warrant appointment of a receiver: Code of Civil Proc., 265; 34 S. C., 77; 32 S. C., 134; 19 S. C„ 286. Who appointed receiver: 23 Ency., 1032. cite: Court has jurisdiction: 27 S. C., 417; 80 S. C., 80.

Before Hydrick, J., Spartanburg, Action by Charles R. Morrow against Atlanta and Charlotte Air Line Railway Company. From order setting aside verdict and dismissing complaint, plaintiff appeals. cite: Common law is presumed, to govern in both States: 66 S. C., 91; 132 N. C., 270; 130 N. C., 479. Under this law plaintiff should recover: 31 S. E., 212; 21 Am. R., 371; 59 F., 431; 66 S. W., 114; 47 S. W., 41; 25 S. E., 387; 33 P., 213; 21 N. E., 31.

Before Hydrick, J., Spartanburg, Summer term, 1908. Action by J. A. C. High against J. C. Wingo. From judgment for plaintiif, defendant appeals. cite: Case can only be discontinued by order of Court: 1 Ency., P. & P., 756; 6 Ency., P. &. P., 868; 14 Cyc., 39; 37 S. C., 269. Motion to make case conform to magistrate case, too late: Code, sec. 181; Rule XX, Circuit Court; 53 S. C., 582; 68 S. C., 297.

<p>1. Carrier — Freight.—Receipt of a lot of flour in “apparent good order;” that two other consignments of flour of same brand, of same lot and from the same warehouse were delivered about ten days before in good condition, tend to show flour was damaged in possession of carrier.</p> <p>2. Ibid. — Ibid.—Bill op Lading — Waiver.—Where carrier’s agent examines goods claimed to have been damaged in transportation to ascertain the amount of the damage and directs disposition of the goods, a stipulation in the bill of lading that claim for damages must be filed within thirty days is either waived or does not apply.</p> <p>3. Ibid. — Ibid.—Ibid.—Stipulation in a bill of lading that amount of loss or damage to freight for which carrier is liable shall be computed at the value of the goods at the time and place of shipment is construed to mean the value when received by the carrier with freight charges added.</p>

<p>Before Shipp, J., Greenville,</p> <p>Action by Annie M. Owen, as administratrix of Paul Owen and Pay Owen, and as guardian of Eleanor Owen, against Bankers Life Insurance Company of the City of New York. Prom judgment for plaintiff, defendant appeals.</p> <p>cite: Representation are not a part of contract: 47 La. Am., 1405. Warranty must be true: May on Ins., sec. 126; 11 Ency., 290. The application is a part of the policy, and if its statements are false, policy is defeated: 69 Ill. App., 447; 28 S. C., 439; 119 Ill., 474; 92 U. S., 377; 39 Ind., 475; 25 Am. St. R., 619; May Ins., 126; 36 S. C., 268. Laws of New York should govern contract: 73 S. C., 140; 3 Minor Inst., 145; 16 Gratt., 126; 36 L. R. A., 271.</p> <p>cite: Contract was subject to sec. 1825 of Code, ip02: 53 L. R. A., 305; secs. 1887 and 1790 of Code, 1902.</p>

Before Watts, J., Williamsburg, Action by Charles Marthinson, agent, against Hugh Mc-Cutchen et al. From judgment for defendants, plaintiff appeals. Messrs. Montgomery & Lide cite: When deed should be set aside for fraud: 2 Ency. Ev., 833-4; 94 U. S., 207; 121 U. S., 325; 2 Hill, 666. Action must be brought zvithin six years of knowledge of fraud: 16 S. C., 550; 77 S. C., 535. After zvriting cobtract, former colloquium is ended: 42 S. C., 8. As to alienage: 78 S- C., 142.

<p>Amexdixg Pi.eadings. — A complaint to reform a deed, to sell the property conveyed and divide the proceeds amongst defendants may he amended by inserting another cause of action, the settlement of the estate of grantor, and bringing in other parties not interested in the reformation of the deed.</p> <p>Mr. Justice Hydrick dissents.</p>

<p>Before DantzeER, J., Lexington,</p> <p>Action by E. L. Asbill, W. A. Shealy and W. E. Quattlebaum, as trustees, of school district No. 15, against A. D. Martin, superintendent of education for Lexington county, E. L. Wingard, county treasurer, and Miss Fannie L. Johnson. From order overruling demurrer, defendants appeal.</p> <p>cite: 30 S. C., 579; Con., art. X, secs. 5, 12; art. XI, secs. 2, 6; Endlich on Int. of Stat., 527; 22 Stat. 122, 920; Code, 1902, 1241; 23 Stat, 536, 865, 1238; 24 Stat., 683, 1124, 1126; 25 Stat., 849, 851, 853, 854; 24 Stat., 679; 25 Stat., 1443, 1451, 1457, 1459.</p>

<p>Release for Personal Injury. — If one receiving an injury execute a release in such a mental condition as not to know or remember its execution or of the reception of any consideration therefor, the release does not estop him from suing for damages for the injury, but in case of recovery the amount paid for the release should be deducted from the judgment.</p>

<p>Before DeVorE, J., Oconee,</p> <p>Indictment by Town of Seneca against G. B. Cochran. From Circuit order reversing judgment of Town Council the town appeals.</p> <p>cites: Town Council has power to make an ordinance establishing fire limits: 13 B. A. R., 484; 84 Cal., 127; 98 111., 305; 100 Id., 580; I Dill. Mun. Corp., sec., 405; 29 L. Ann., 651; Wood on Nuis., sec. 741; 55 Am. R., 336; 28 Am. Dec., 188; 123 Mass., 372; 4 T. & C., 256; 40 Conn., 478; 54 Miss., 659; 105 Ind., 542; 98 111., 305; 35 Ark., 352; 117 Pa., 326; Code, 1902, 1957. Reasonableness of an ordinance, not violative of a statute, is not for the Courts: 48 S. C., 583; 74 S. C., 209; 12 B. R. A., 153. Such ordinances are necessary for the.public welfare: 38 Am. R., 89; 12 B. R. A., 153; 100 Ind., 580. Such ordinances are constitutional: 13 B. R. A. (N. S.), 741; 173 U. S., 32; 72 Cal., 125; 123 U. S., 665; 45 B. R. A., 435.</p> <p>cites: The ordinance does not prohibit the repairs in question: 15 Ency., 1171, 1173; 6 S. E., 13; 14 S. E., 387; Dill, on Mun. Corp., sec. 338.</p>

Before Klugh, J., Cherokee, Action by C. N. Roberts against Virginia-Carolina Chemical Co. and John Byars. From judgment for plaintiff, defendant Chemical Co., appeals. cite: Nonsuit should have been ordered: 55 S. C., 483; 66 S. C., 256; 69 S. C„ 529; 70 S. C., 470; 71 S. C., 53; 72 S. C., 246, 237, 264, 403; 74 S. C., 419; 75 S. C., 102, 487; 78 S. C., 472; 81 S. C., 236. Duty of master in hiring servants: 2 Lab. on M. & S., sec. 572; 70 S. C., 327.

<p>Before Gage, J., Richland.</p> <p>Action by Louisa B. Taber against Seaboard Air Line Ry. From order of nonsuit', plaintiff appeals.</p> <p>cite: Former decision does not relieve carrier of liability for acts of pullman porter: 159- Fed., 387; 65 S. C„ 275; 65 S. C., 283; 80 S. C., 133; 2'Fetter on Car., 943; 20 L. R. A., 819; 102 U. S., 451; 32 Am. R., 325; 8 R. A., 224; 91 S. W., 845. Passenger has the right to rely on representations as to schedules: 89 S. W., 746; 61 L. R. A., 122; 75 S. C., 144; 53 S. C., 213. Non-suit as to negligence: 69 S. C., 539; 81 S. C., Ill, 323.</p> <p>Former judgment is operative under rule 27: 77 S. C., 467; 81 S. C., 317. Its jiidgment also res judicata: 52 S. C., 166; 65 S. C., 410; 37 S. C., 150; 74 S. C., 236; 64 S. C., 242; 63 S. C., 537; 58 S. C., 488; 17 S. C., 163; 54 S. C., 109; 21 S. C., 501; 16 S. C., 621; 6 S. C„ 278; 5 S. C., 335; 44 S. C., 20; 94 U. S., 351.</p>

Before Watts, J., York, Action byW. F. Jackson, Jr., against Southern Railway —Carolina Division and Southern „Ry. Co. From judgment on verdict directed by Court, plaintiff appeals. Mr. Wm.

<p>Before Memminger, J., Laurens,</p> <p>Action by George W. Brooke against Laurens Milling Company. From judgment for defendant, plaintiff appeals.</p>

Before Klugh, J., Berkeley, Action by the Woodstock Hardwood Spool Mfg. Co. against Charleston Light and Water Co. From judgment for plaintiff, defendant appeals. Messrs. Mitchell, Whaley & Bissell, cite: Appellant was not a tresspasser: 10 Ency., 1111, 1114; 21 Ency., 737; 35 S. C., 488, 501. Instruction to award more than actual damage is error: 28 Ency., 605. Injury must he direct: 30 S. C., 539; 1 Hill., 365; 3 S. C., 447; 46 S. C., 377; 68 S. C., 540; 54 S. C., 242.

Petition in the original jurisdiction of this Court by Caro- . lina, Clinchfield and Ohio Railway, George L. Carter, Archer A. Phlegar and William H. Lyles, for writ of mandamus to require R. M. McCown, as.Secretary of State, to file their petition and issue to them a charter to build a railroad in this State. The case was first heard before this Court on October 12, 1909.

<p>1. Cabbieb. — Fb.eight—Penalty—Cause op Action. — Claims for loss or . damage to freight and for penalty for failure to adjust in limited time may be sued in separate actions commenced at same time, but judgment for penalty cannot be rendered until judgment for full amount claimed as damages. The cause of action for the penalty arises upon failure to adjust within the time.</p> <p>2. Ibid. — Ibid.—Ibid.—Jubisdiction of a cause of action for a penalty under the act, 24 Stat., 81, may be acquired by a magistrate in another county than which the cause of action arose by appearance of carrier, pleading and participating in trial. What things Court may take judicial notice of stated in dissenting opinion.</p> <p>Mr. Chief Justice Jones, Mr. Justice Woods and Judges Dantzler,</p> <p>Prince, Memminger and Aldrich dissent.</p>

<p>1. Testimony de bene esse. — A deposition in magistrate court presented in a tattered condition should be received where the court is satisfied of its identity and authenticity and that its condition was not the result of tampering or fraud.</p> <p>2. Carrier — Freight—Bill of Lading — Value.—The limitation of value in a contract of shipment to the value at the place of shipment should be construed to mean the invoice price with the freight added.</p>

<p>Before Wilson, J., Sumter,</p> <p>Action by R. M. Jenkins against Atlantic Coast Line Railroad Company. From order affirming judgment of Mágistrate H. L. B. Wells, defendant appeals.</p>

<p>Before Wilson, J., Sumter,</p> <p>Action by R. M. Jenkins against Atlantic Coast Line Railroad Company. From judgment on Circuit -affirming judgment of Magistrate H. L. B. Wells, defendant appeals.</p>

<p>1. Master 'ahb Servant. — Amendment to a complaint alleging the conductor left said train and went into the depot, to the effect that the conductor left the train and did not return to see that his orders were carried out with due care, which was the proximate cause of the injury, sustained as within the discretion of the Circuit Judge.</p> <p>2. Ibid.- — Res Judicata. — The evidence in this case on the first trial being different to that on the trial in question, 'as to the safety of the method adopted by the brakeman in making the uncoupling, as to the care .of the conductor in overlooking the act of coupling and signalling the engineer ahead and to increase his speed, the judgment on former appeal that it was error not to grant nonsuit, is not res judicata here.</p> <p>3. Ibid. — Fellow-Servant.—The engineer being bound to obey the signal of the conductor, and having no notice of the position of the brakeman in coupling, any violent jerk of the train caused by a signal of the conductor would be the negligence of the conductor and not of the engineer, a fellow-servant of the brakeman.</p> <p>4. Contributory Negligence. — The defendant having denied all negligence and set up the defense of contributory negligence, the instruction that the jury must consider contributory negligence in the light that it necessarily implies an admission of negligence on the part of defendant would have misled the jury, if the Judge had not instructed them plaintiff must show that defendant was guilty of negligence.</p> <p>5. Master and Servant. — Servant cannot plead presence of master for his safety from danger in obeying an order of such obviously dangerous character as no man of reasonable prudence would undertake.</p> <p>6. Ibid. — The servant in obeying the order of the master is not bound to choose at his peril the safest way, but in choosing between safe . and unsafe methods he is only bound to use due care.</p> <p>7. Charge. — It is best for trial Court to instruct, jury as to the law of this State and not to contrast it unfavorably with the laws of other jurisdictions.</p>

Before Wilson, J., Bamberg, Fall term, 1908. Action by S. G. Mayfield against Southern Railway Co. From judgment for plaintiff, defendant appeals. cites: Proof of contents of bill of lading improperly permitted: 81 S. C., 451. No evidence of punitive damages: 39 S. C., 365, 381; 57 S. C., 325; 52 S. C., 291; 81 S. C., 25.

Before Dantzlrr, J., York, Action by W. W. Auten against the Catawba Power Co. From judgment for plaintiff, defendant appeals. The opinion in this case was filed on July 26th, but remittur stayed on petition for rehearing until

<p>1. Contracts — Parol Evidence. — When a contract of sale of secondhand machinery has been reduced to writing, stipulating the price and the amounts to be credited against the agreed price, parol evidence is not admissible to show other expenditures have been necessary to put the machinery in good condition with a view of crediting these amounts against the contract price, nor to show the value of the machinery, in absence of fraud or gross inadequacy, nor to show when the machinery was actually delivered.</p> <p>2. Counterclaim — Counties.—In an action by a county for a money judgment, a counterclaim cannot be set up by the defendant in the form of an account against the county not duly itemized, verified, filed with and audited by county board of commissioners.</p>

<p>Before Gage, J., Abbeville,</p> <p>Action by Benjamin L. Magill against Seabord Air Line Railway. From judgment for plaintiff, defendant appeals.</p> <p>Mr. Green cites: Objectionable to passengers: 57 S. E. R., 744; 2 P. E. R. A. (N. S.), 472; 56 S. E., 70; 26 Am. R., 68. Punitive damages: 2 L. R. A. (N. S.), 472.</p> <p>Mr. Glenn cites: If conductor exercise duty of vigilance with discretion carrier is not liable: 56 S. E., 68; 57 S. E-, 943 ; 93 Mass., 304. Punitive damages: 45 S. E., 1000; 12 S. E., 1061. Distinction between actual and punitive damages in charge not clear: 48 S. E., 232; 37 S. E., 161; 22 S. E., 613; 29 S. E., 309; 30 S. E., 362; 32 S. E., 80.</p> <p>Mr. Magill cites: Announcement on the train properly ruled out: 4 Ency., 104, 105; 36 N. Y., 477. Evidence not responsive to allegation is inadmissible: 69 S. C., 360; 68 S. C., 89.</p> <p>Mr. Graydon cites: Announcement on cars properly ruled out: 16 Cyc., 1200, 1206; 42 S. E., 364. Law of Georgia applicable to this case: Secs. 3906, 3907, Code of Ga.; 124 Ga., 357; 99 Ga., 266.</p>

Before. Gage, J., Laurens, •Action by Rosalie A. Sullivan against John Moore. Prom judgment for defendant, plaintiff appeals. cite: Bssential elements of estoppel: 16 Cyc., 734; 76 S. C., 573 ; 57 S. C., 507; 70 S. C., 306; 34 S. C„ 464. There is no estoppel by silence as to a matter of record: 4 A. & E. Dec. in Eq., 337; 77 S. C, 433, 36 S. E., 861; 93 U. S., 337; 160 U. S., 337; 8 U. S., 38; 13 U. S., 119; 57 S. C., 518; 13 S. C., 39; 31 S. C., 153; 60 S C., 316.

Before Gage, J., Marlboro, Spring term, 1909. Action by Cape Bear Lumber Company against Adeline Small and Tilghman Lumber Company. Held: further, that a court of equity will not enforce an agreement where it appears conclusively that the value of the thing to be conveyed is so much out of proportion to the price to be paid, as the testimony shows it to have been in this case.” Messrs.

<p>Before Klugh, J., Abbeville,</p> <p>Petition by M. Harvey Willson et al. In re M. Harvey Wilson et al. against Evans Gordon et al.</p> <p>Erom decree herein, Mrs. Jane W. Crymes appeals.</p> <p>cite: Issues that may be determined in partition: 30 Cyc., 331; 95 U. S., 714; 34 Ency., 463; 35 Ency., 5034, 500; 54 S. C., 404. Where accounting may be had: 4 Po'm. Eq. Jur., 1430-31; Ency. P. & P., 93, 94, 96 Necessary pleadings: 1 Ency., P. & P., 97, 99. Note is not a proper subject of set off: 53 S. C., 593; 35 Ency., 488-9, 500; Chev. L., 50; Pom. C. R., 375. Necessary parties are not before Court: 35 Ency., 519, 531; Chev. R., 500; 3 S. C., 353; 3 S. C, 354; Code of Proc., 171; 30 S. C., 119; 55 S. C., 540; Pom. R., secs. 757, 756, 762. No sufficient ground for equitable interposition: 19 Ency., 719; 30 S. C., 128; 25 Ency., 543, 542; 19 Ency., P. & P. 764. Note is not within the scope of the partnership: I Bail, 561; 14 S. C., 620; 68 S. C., 198; 22 Ency., 136, 138; 30 Cyc. 477, 487-90, 510-11; 22 Ency., 144-7; 9 Ene. Ev., 556, 557; 2 Rich., 587; 26 S. C., 514. Proof of partnership: Wig. on Ev., sec. 1624; 9 Ency. Ev., 547; 18 S. C., 223.</p> <p>sites: Administrator may require appellant to account for what she owes estate: 16 S. C., 216; 77 S. C., 115.</p>

<p>Petition in the original jurisdiction of this Court by H. W. Black, Jr., against E. E. Eishburne, as intendant, et al., for injunction.</p>

<p>Before Gary, J., Marlboro,</p> <p>Action by A. J. Matheson against W. A. & B. D. Rogers. From circuit judgment, plaintiff appeals.</p> <p>Messrs. Stevenson, Matheson & Stevenson, cite: As to attorney’s fees: 71 S. C., 258; 37 S. C., 212; 68 S. C., 242; 62 S. C., 186; 43 S. C., 72; 31 S. C., SOG; 33 S. C., 283; 50 S. C., 309; 69 S. C., 69; 26 Ency., 10.</p> <p>Messrs. McColl, McColl & LeGrand cite: As to costs: Code of Proc., 323; 1 McC. Ch., 247; 81 S. C., 315; 1 Am. St. R., 248; 38 N. J. L., 388; 168 N. Y., 560; 3 Kas., 380. As to attorney’s fees: 95 Wis., 472’; 49 Wis., 497; 2 Nev., 207; 173 Pa., 263; 137 Pa., 629; 88 Pa., 384; 16 Eed., 736; 121 Col., 256; 141 U. S., 415; 168 U. S., 325; 50 S. C., 303; 55 S. C., 106.</p> <p>Messrs. Livington & Midler cite: As to costs: Code of Proc., 323; 32 S. C., 216; 36 S. C., 569; 41 S. C., 363; 44 S. C., 383; 76 S. C., 181. As to attorney’s fees: SO S. C., 303; 71 S. C., 254, 287 ; 27 Cyc., 1785.</p>

Before Gage, J., York, Action by Susan A. Steele et al. against Alice Smith and Susan R. Smith. From judgment for plaintiffs, defendants appeal. Messrs. Spencers & Dunlap cite: Rule in Shelley’s case applicable: 2 Rich. Eq., 52; 1 Pres, on Ests., 263. The tzuo limitations here by the same instrument: 1 Fearne, 79; 2 Wash., R. P., 598; Perry on Trusts, sec. 248; Hill on Trustees, 67.

Before Prince,-J., Charleston, Action by H. Baker against Western Union Telegraph Co. From judgment for plaintiff, defendant appeals. cite: Evidence as to condition of wires improperly ruled out: 19 S. C., 71; 72 S. C., 350; 80 S. C., 207. Carrier not responsible for delay caused by act of God: 19 S. C., 71; 80 S. C., 207; 72 S. C., 350. No evidence of wilfulness: 73 S. C., 520; 69 S. C., 545; 77 S. C., 405, 404; 65 S. C., 99; 72 S. C., 256; 73 S. C., 385.

Before Gary, J., Richland, Action by A. Hardy, John D. Frost, E. A. Allworden and J. D. Miot, as Board óf Police Commissioners, for injunction against W. S. Reamer, Mayor, Geo. W. Collins, F. S. Earle et al., as aldermen of the city of Columbia.

<p>Appeals. — The liberality of the Court in construing the statutes and rules of Court to the end that appeals taken in good faith may be heard on their merits, is not to be presumed upon to the detriment of parties who invoke the statutes or rules in such cases.</p>

<p>1. CONSTITUTIONAL Law — DISCRIMINATION FOREIGN CORPORATIONS— Tax Licenses. — The State having the right to discriminate against foreign corporations, it may impose on certain foreign insurance companies as a condition precedent to doing business in the State the payment of the amount of taxes levied under a statute held unconstitutional, and not imposed on other like corporations.</p> <p>2. Ibid. — Ibid.-—Ibid.—Ibid.—A foreign insurance company having complied with the provisions of section 1801 of Code of 1902, providing for the appointment of an agent in the State upon whom process may be served as a condition precedent to doing business in the State and doing business in the State, is not thereby brought within the inhibitions of the State and Federal Constitutions as' to discrimination, but its right to do business within the State expires with its annual license.</p> <p>3. Foreign Corporations — -Licenses.—The Attorney General has no power to grant a foreign corporation license to do business in the State, and he has not undertaken to exercise such power.</p>

<p>Self-Defense.- — Instruction that self-defense is complete when established by the preponderance of the evidence and that it applied to the crime of manslaughter as well as of murder, leaves no ground for alleged errors.</p>

Before Aldrich, J., Marion, Action by Marion County Lumber Company against Tilghman Lumber Company. From judgment for plaintiff, defendant appeals. Messrs. Montgomery & Lide cite: Proceeding for sale of timber was not partition suit: 5 Rich. Eq. Cas., 401; 99 S. W., 872; 49 Ala., 453; 1 Spear. Eq., 518; 1 Rich. Ecp, 361; Knapp on Par., 112; 111 N. W., 37; 65 S. C., 499; 12' S. C., 488.

Before-, J., Laurens, Indictment against Fletcher Davis for soliciting orders for whiskey. From sentence defendant appeals. cite: Is the act constitutional? 82 S. C., 93; 50 N. W., 425; 17 Ency., 65, 84; Schollenberg v. Pennsylvania, 171 U. S.; 170- U. S., 412; 214 U. S., 222; 120-U. S., 489; 72 Fed., 657; 156 U. S., 319; 115 Fed., 339; 187. U. S., 137; 95 U. S., 472; 9 Wheat., 1, 210. Does the indictment charge an indictable offense? 170' U. S., 412; 203 U. S-„ 270.

<p>Imprisohmeut — Appeal.'—A solicitor has no authority to order the sheriff to arrest a defendant' and deliver him to the State penitentiary who has been released on bond after sentence by order of a Circuit Judge, reciting that the defendant had served notice of appeal.</p>

Before Wieson, J., Sumter, Action by R. M. Jenkins against Atlantic Coast Line R. R. Co. From Judgment for plaintiff, defendant appeals. The opinion here was filed October 18, 1909, but held up on petition for rehearing until

<p>1. Self Defense. — One who shoots another while sitting in a wagon holding a gun in her lap, but making no effort to use it, the deceased some time previous to the killing having used profanity toward him and having been guilty of misconduct and violence to him, is"not entitled to the plea of self-defense, especially when he was in no peril when he shot.</p> <p>2. Evidence — Insanity;—Harmless Error. — On the issue of insanity, the entire conduct of the alleged insane including words spoken and the manner of speaking, is competent, but ruling them out here on ground that they were self-serving declarations is not injurious to defendant, as like evidence to that ruled out had been previously admitted.</p> <p>3. Charge — Circuit Judge. — Statements made by the trial Judge in ruling on objections to evidence held not to amount to such expression of opinion on the merits of the defense of insanity as to indicate the Judge was a participant in the consideration of that question of fact, but the Court thinks it is better for the trial Judge not to indulge in questionable comments. «</p> <p>4. Witness. — Trial Judge may properly elicit from a witness any evidence tending to show the truth of the matter in controversy.</p> <p>5. Insanity. — The charge here not only covered insanity from delirium tremens, but of any other form resulting from excessive use of liquor as an excuse for crime.</p> <p>6. Charge.- — The trial Judge is not required to single out and emphasize any part of the evidence on any issue.</p> <p>7. Ibid. — -Murder—Manslaughter.—The homicide being admi'ted, it is not error to instruct that mere drunkenness or anger would not reduce a homicide from murder to manslaughter, nor would the deceased cursing defendant or engaging in a fight with him constitute such legal provocation as would reduce a killing afterward done from murder to manslaughter. Nor is such instruction a charge on the facts.</p>

Before Dantzeer, J., Charleston. Petition by James Gibbes for mandamus against T. A. Beckett. Prom Circuit order, both parties appeal. cite: As to the refusal of mandamus: 19 Ency., 725-30; 30 S. C., 582: Failure to serve notice is fatal: 33 S. C., 401; 56 S. C„ 426; 9 S. C., 62; 7 S. C., 342. As to stay of sentence and admitting defendant to bail: Cv. Code, 69, 73, 29; Code, 1902, 2436.

<p>1. Railroads — Engines—Negligence-—Ordinances.—Violating a city-ordinance by leaving an engine standing on a street crossing is negligence per se. Under the evidence here the trial Judge properly sent to the jury the issue, whether an engine standing on a street crossing emitted steam in such an unusual and unnecessary manner as that a traveler’s horse was frightened and injured him as the proximate result of such emission.</p> <p>2. Railroads — Punitive Damages. — Evidence tending to show a railroad company knowingly violated a city ordinance by leaving its engines standing on a street crossing emitting steam with no one in charge of them, will support a verdict for punitive damages in favor of one suffering injury resulting therefrom.</p>

<p>Appeal — -Magistrate Court. — A circuit order granting a new trial on appeal from magistrate court on ground that verdict is against the preponderance of the evidence is not appealable.</p>

Before MemmingEr, J., Kershaw, Indictment against Melton Banks, defendant appeals from sentence. cite: Bach count must alone charge a complete offense: 45 S. C., 480; 55 S. C., 322. Second count does not charge privily entering: 19 S. C., 140; 34 S. C., 134; 18 Ency., 463. cites: If indictment did not allege grand larceny objection should have been made before jury empannelled: 83 S. C., 434.

Before Watts, J., Lee, Action by Carter & Harris against Atlantic Coast Line R. R.- Co. and C. H. Carpenter. From order sustaining demurrer and dismissing complaint as to C. H. Carpenter, plaintiffs appeal. cite: Duty of railroad company to keep its way clear: 33 Cyc., 1338; 13 Ency.,-466; 163 U. S., 456. Carpenter is charged with wrong along with the railroad company: 65 S. C., 332, 342.

Petition in the original jurisdiction of this Court by Lucy Dugas Tillman against B. R. Tillman and his wife Sarah S., in re the custody of Douschka Pickens Tillman and Sarah Stark Tillman, children of petitioner and B. R. Tillman, Jr. Mr. Simkins, cites: Degree of restraint necessary to authorise the writ: Hurd on Habeas Corpus, 453 ; 15 Ency., 150, 185; 72 S. C., 23. The deed in question is a nullity at present and takes effect at death of grantor: Act 12, Chas. II; Ga.

<p>1. Issues — Negligence—Railroads.—There being evidence tending to show negligence of the carrier: (1) in running its street car at a greater rate of speed than allowed by the city ordinance, (2) in failing to give proper signals, (3) in running the car without a headlight in violation of the city ordinance, the issue of proximate cause of injury was properly sent to the jury.</p> <p>2. Appeal. — Error of trial Judge in stating issues should be called to his attention if it is to be made the basis of an appeal.</p> <p>3. Requests. — Substantially covering a request in the general charge is not refusing it.</p> <p>4. Charge — Negligence.—The whole charge construed together held not to fix as the standard of care the “ordinary woman,” but a person of ordinary care and prudence.</p> <p>5. Ibid. — Railroads—Look and Listen. — Giving the request asked as to duty of one crossing a street-car track to look and listen in the form submitted would have been to instruct the jury what acts constitute negligence.</p>

<p>Before S#asE, J., Barnwell, Summer Term, 1909.</p> <p>Indictment against Ralph Boyleston for murder of Cleveland Fanning. From sentence, defendant appeals.</p> <p>cite: Refusal of continuance was error: 50 S. C., 404; 79 S. C., 85. Cowht should admonish jury of uncertainty of tracks and trailing.: 44 S. W., 143; 35 S. E., 102; 36 S. E., 609.</p> <p>The Solicitor cites: Ordering case to trial was proper: 77 S. C., 240; 68 S. C., 144. This order is not appealable: 16 S. C., 453. Refusal of new trial for insuiñcency of evidence is not renewable. 44 S. C., 339. Severance is discretionary zviih the trial Judge: 77 S. C., 241; 49 S. C., 410; 7 Rich., 412.</p>

Before DeVorE, J., Abbeville, Indictment against Elliott Stokes, for larceny of live stock. From sentence, defendant appeals. cite: Mortgage of personal property passes title to mortgagee: 20 S. C., 17, 514, 110; 26 S. C., 336; 32 S. C., 368; 32 S. C., 368; 48 S. C., 405; 51 S. C., 42. Indictment must allege special ownership: 3 S. C., 230; Arch. Crim. PL, 118; 2 Hill, 287; 12 S. C., 180; 15 Rich., 39.