Volume 85 — South Carolina Reports

Before Gage, J., Kershaw, December, 1908. Action by Emma E. Williams against Haile Gold Mining Company Co. From judgment for plaintiff, defendant appeals. cites: Former judgment of easement competent: 46 S. C., 43. Injunction indefinite: 80 S. C., 47. Consideration of injury to public: 81 S. C., 554; 49 S. C., 95. Rental value is measure of damages: Maner v. Wilson, 16 S. C., Rabb v. Patterson, 42 S. C.; 21 Ency., 727; 49 S. C., 95.

<p>Contractors — Misdemeanors.—It is a misdemeanor under section 338 of Criminal Code for a contractor not to pay laborers, subcontractors and material men “out of money received by him” on the contract.</p>

Before SeasE, J., Spartanburg, August, 1909. Action by T. R. Trimmier and S. F. Sutton against Valley Falls Mfg. Co. et al. From order refusing temporary injunction, plaintiffs appeal. Judgment creditors should have been restrained from enforcing their judgments: 51 S. C., 433; 63 S. C., 361; 69 S. C., 159, 551; 75 S. C., 220. cites: Order is not appealable: 48 S. C., 315.

Before Aldrich, J., Anderson, Fall term, 1909. Indictment by City of Anderson against M. Seligman, B. Hillman and I. Gierberg. From order reversing sentence of mayor, City of Anderson appeals. The Circuit decree is: “There are several grounds of appeal, but the only one considered by the Court in sustaining the appeal and vacating and setting aside the judgment below is upon the question of jurisdiction.

Before Sfase, J., Darlington. Action by J. N. Moore against Atlantic Coast Dine R. R. Co. From judgment for plaintiff, defendant appeals. cites: Consignee of freight can alone maintain action: 25 S. C., 216; 23 S. C., 339; 50 S. C., 137; 79 S. C., 158: No notice of special damages: 81 S. C., 536; 23 S. C., 498; 83 S. C., 501.

<p>Before C. C. FeatherstonE, Special Judge, Spartan-burg, Spring Term, 1909.</p> <p>Action by C. E. Rowe against Southern Railway. From judgment for defendant, plaintiff appeals.</p>

<p>1. Carrier — Live Stock. — Under a bill of lading for an interstate shipment of horses, making it the duty of the owner to feed and water, but of carrier when he fails to do it, the carrier is liable for damages resulting to the stock from failure to furnish shelter while it has them unloaded for food and rest under the Federal statute, page 918, of Compiled .Statutes Sup., 1907.</p> <p>9. Ibid. — Ibid.'—Waiver.—Where a bill of lading in an interstate shipment of live stock from Georgia into this State provides that claim for damages must be made in writing before the stock are unloaded and mingled with other stock, and where the consignee unloads and mingles the stock with others without making claim in writing but notifies carrier’s agent over telephone of damage, and is instructed to call in a veterinary surgeon to examine them and the carrier would pay the bill, this is some evidence of waiver of the stipulation by the carrier. The same rule would apply under the Georgia law.</p> <p>3. Principal and Agent — Presumptions.—Where one connects his business office with a telephone exchange and one having business with him talks over the telephone with one in his office, as his agent, about the business there conducted, such person is presumed to be the agent of the principal as to the business there conducted.</p>

<p>Before SeasE, J., Spartanburg, September, 1909.</p> <p>Petition of J. H. Banks in suit of J. H. Parris against Carolina Mutual Fire Insurance Co. From order refusing his petition, he appeals.</p> <p>cite: 81 S. C., 241.</p> <p>cites: 55 S. C., 540; 22 Cyc., 1425-0; 21 Ency., 301; 71 N. C., 389; 2 Cool. Briefs on Ins., 979; 53 S. C., 592; 55 S. C., 78.</p>

Before Gary, J., Clarendon, February, 1909. Action by R. H. Green against E. P. Ervin, W. E. Jenkinson and W. K. McIntosh, co-partners as People’s Warehouse Co. From Judgment for plaintiff, defendant appeals. cites: Declarations of agent not admissible: 77 S. C., 184; Whart Ev., sec 1173 ; 1 Green. Ev., secs. 113, 114; 1 So. R., 345; 36 S. C., 10; 14 S. E., 983; 17 S. C., 139; 2 Tread., 615; 3 Rich.

<p>Before DantzlEr, J., Pickens, June, 1909.</p> <p>Indictment against Haas Butler, defendant appeals from sentence.</p> <p>cites: Intent is the essence of offense: 32 Tex. Cr. R., 502; 14 Gray, 415 ; 86 N. C., 658. Force an essential ingredient: 63 Ga., 355; 31 Conn., 210; 12 Tex. App., 196; 2 Ency., 973; 32 Tex. Cr. R., 502; 14 Gray, 415 ; 86 N. C., 658; 80 Col., 306; 68 la., 391; 90 Ala., 628; 63 Ga. 355 ; 31 Conn., 210; 12 Tex. App., 196; 12 Tex. App., 194.</p>

Before Memminger, J., Lancaster, August, 1909. Held: as they now claim, that they do inherit, it must be upon some fluke of the law arising out of a mistake in framing the will, and in diametric opposition to the clearly-expressed intention of the testator. “Of course such a clearly expressed intention cannot be carried out in conflict with settled rules of law; and the rule relied…

Before Memminger, J., Yorkville, August, 1909. Action by T. Emiline Barber, Osmond Barber, Sarah E. Ross and T. Henderson Barber against Thos. A. Crawford, Alexander Barber and Hal Bahnson. From Circuit decree, plaintiff appeal. cite: Dying “without bodily issue” here meant so dying at devisee’s death: 7 Rich. Eq., 107; 16 S. C., 262. Testator’s ■“surviving heirs” here meant such of his heirs at his own death as might survive his son: 2 Black., 201; 2'6 S. C., 150; 6 Rich.

Before C. C. Featherstone, Special J., Greenville. Action by R. A. Burris against Willis V. Austin and the United States Fidelity and Guaranty Co. From judgment for plaintiff, defendants appeal. cite: Mortgage having been indexed as plaintiff requested, he cannot complain: 23 Ency., 379. McChem on Public Officers, secs. 680, 705; 95 Am. Dec., 175.

Before DantzeER, J., Greenville, May term, 1909. Indictment against Robert Chastain for murder, defendant appeals from sentence. cites: One may strike in defense of another in serious danger: 2 Hill, 623. An element of self-defense is that one dangerously assaulted need not retreat: 71 S. C., 145; 73 S. C., 260; 29 S. C., 44, 202; 32 S. C., 30, 32 S. E., 772. No malice or anger here: 2 Hill, 619; 10 Rich., 341; 28 S. C., 29, 32 S. E., 772. Oral argument.

<p>Before Watts, J., Hampton, February, 1909.</p> <p>Order of reference as to fees for petitioners, E. F. Warren and W. T. Smith, in the case of Jas. F. Thames et al. against M. D. Rouse et al. From order of reference, plaintiffs appeal.</p>

<p>Attorney's Fees — Receiver.—The Court appointing a receiver has the authority to fix the fee of the attorney representing him as a part of the administration of the estate, and it is not error to order a reference to take evidence to ascertain if a fee should be paid and how much.</p>

Before DeVorE, J., Greenwood, June term, 1909. Indictment against L. A. Lloyd for murder, defendant appeals from sentence on verdict of manslaughter. cite: Insanity relieves of responsibility for crime: 34 S. C., 445 ; 30 S. C., 16; 39 S. C., 97.

Before Watts, J., Bamberg, Winter term, 1909 Action by A. W. Knight against Southern Railway Co. Erom judgment for defendant, plaintiff appeals. cite: Issue of reasonable time for removal was for jury: 76 S. C., 13 ; 72 S. C., 45; 10 Rich., 419; 6 Cyc., 443; 1 E. R. A., 142, 851; 4 Id., 140; 6 Id., 1048.

<p>Before MemmingER, J., Berkeley, April term, 1908.</p> <p>Action by Theodore G. Barker and Henry L. Barker against Harvey C. Thomas and M. M. Haynes. Defendants appeal from order refusing nonsuit and granting new trial.</p>

Before Watts, J. Bamberg, Winter term, 1909. Action by Colleton Realty Company against John F. Folk. From judgment on order of nonsuit, plaintiff appeals. cites: Several and separate writings may be construed together to make out a contract: 48 S. C., 496; 33 S. C., 367; 29 S. C., 533. Oral evidence is competent to describe or locate the thing in action: 48 S. C., 506; 33 S. C., 367; 29 S. C., 533.

Before DantzlER, J., Lexington, February term, 1909. Action by FEaskell Ghaner by Guardian against Leaphart Lumber Co. From judgment for plaintiff, defendant appeals. cite: Negligence should not be shown by subsequent precautions: 51 S. C., 222. Infant is presumed incapable of contributory negligence and assumption of risks, but the presumption is 'rebuttable: 25 S. C., 24; 27 S. C., 456; 16 S. C., 543; 80 S. C., 351; 83 S. C., 17, 19; 15 Wall., 401.

<p>Before Hydrick, J., Richland, March term, 1909.</p> <p>Action by Loríele & Lowrance against Howard Caldwell. From judgment for plaintiff, defendant appeals.</p> <p>cite: Promise to pay the debt of Hall must be in writing: .1 McC., 100; 4 Strob., 430; 29 S. C., 13, 68 S. C., 396. Test ivhether undertaking zvas original or collateral: 4 Strob., 430; 29 S. C„ 13; 1 McC., 100; 1 McC., 103; 4 Rich., 100; 1 McM., 280; 1 Rich., 223; 32 S. C., 276. And is a question of law: 1 McC., 106; 1 Rich., 226; 4 Rich., 104.</p> <p>cites: As to original and collateral promises: 20 Cyc., 163-4, 167, 162; 2 Bail., 56, 581; 3 McC., 102; 1 Bay., 38; 1 McC., 301; 13 S. C., 42; 1 McC., 100, 395, 575; 29 S. C., 14; 1 N. & McC., 124; 4 S. C., 102; 6 Carr. P., 241; R. R. 7 Q. B. Ex. Ch., 196; 3 Par. on Con., 20; 1 Smith’s Cases, 474; 2 E. D. Smith, 411; 2 E. D. Smith, 193 ; 28 Vern, 155 ; 20 Vern, 205 ; 10 N. H., 205; 1 Speer, 349; 3 Hill R„ 41; 141 U. S., 479; 7 U. S., 227, 386.</p>

Before DeVorE, J., Oconee, November term, 1908. Indictment against E. B. Lee for murder of Miles A. Smith. From sentence, defendant appeals. cites: Solicitor cannot discredit his own witness: 30 Ency., 1128; 43 S. C., 126; 22 S. C., 199; Chev. L., 37'. Instructions should be applicable to the evidence: 11 Ency.

<p>Before Shipp, J., Colleton, July, 1909.</p> <p>Indictment against Henry Benton. From order setting aside verdict, State appeals.</p>

Before James P. Izear, Special Judge, Marlboro, November term, 1905. Action by W. A. Sparks against J. B. Green and John R. Townsend. Prom judgment for plaintiff, defendants appeal. cite: Was there a legal tender of the debt due? 2 Bail., 274; 1 N. & McC., 193; 15 Rich, 321. Counterclaim should have been admitted: 69 S. C., 198. cite: Counterclaim not proper: 69 S. C., 198; 15 S. C., 458; 30 S. C., 167; 54 S. C., 400; 45 S. C., 115.

<p>Ikjtjk'ctiost. — The City of Columbia is required to remove within eight months from across the Columbia canal the water mains and bridge erected there by it.</p>

Before Hydrick, J., Richland, April, 1909. Action by the Carolina Agency Co., v. John Y. Garlington. The Circuit decree on the motion to vacate the attachment, is: “This action was commenced January 5th, 1909.

<p>Before C. C. FeaThERSTONE, Special Judge, April term, 1909.</p> <p>Action by Charleston and Western Carolina Railway against R. H. Devlin. From judgment for defendant, plaintiff appeals.</p>

<p>Before Prince, J., Sumter, 1909.</p> <p>Action by Atlantic Coast Line Railroad Company against Mary A. Epperson. From judgment for plaintiff, defendant appeals.</p> <p>cites: Defendant has no right to do business here: 84 S. C., 318. Unclosure by fence: 60 S. C., 389; 63 S. C., 267; 67 S. C„ 548; 72 S. C„ 228; 82 S. C., 24.</p> <p>cites: Title by adverse possession against railroad: 63 S. C., 266; 67 S. C., 499, 548; 72 S. C., 288; 82 S. C., 24; 20 At., 940; 37 S. C., 327; 45 S. C., 274; 54 L. R. A., 522; 190 U. S., 266; 2 L. R. A., N. S., 272.</p> <p>cite: Right to do business here: 174 U. S., 562; 64 S. C., 162. Vesting of right of way: 67 S. C., 507; 72 S. C., 231; 63 S. C., 455. Adverse holding: 72 S. C., 235 ; 63 S. C„ 266; 67 S. C., 553.</p> <p>cites: Question of incapacity to sue is zvaived when not raised by demurrer: 47 S. C., 64; 52 S. C., 205 ; 65 S. C., 105; 14 S. C., 51. Right of corporation to do business cannot be attached collaterally: 80 S. C., 355; 10 Cyc., 256; 6 Thomp., secs. 7913, 7918; 5 Id., 5795 ; 10 Cyc., 1135; 2 Cook on Corp., sec. 637.</p>

<p>Before Watts, J., Marlboro, September, 1909.</p> <p>Petitions in probate court by Thomas Peele and H. R. Peele for administration on the estate of Wm. Peele. From circuit order affirming judgment of probate court, Thomas Peele appeals.</p> <p>cite: An obiter dictum in an opinion is not binding on the Court: 36 S. C., 84; 13 S. C., 354; 42 S. C., 223; 33 S. C., 442; 5 Ency., 662; 59 S. C., 60. Construction of statutes: 77 S. C,, 24; 12 Rich., 628.</p> <p>cite: Reference to title in construing an act: Chev. R., 157; 2 Bail. R., 334, 554. Non-resident should not be appointed: 58 S. C., 469.</p>

Before-, J., Barnwell, 1909. Indictment against J. Chester Kennedy for accessory to murder of W. Perry Ussery. From sentence, defendant appeals. -cites: It is not necessary to set out in the indictment all the attending circumstances: 14 Rich., 225; 1 Hale P. C., 569; 33 N. F., 739; 47 S. W., 886; 9 Ency., 631, 553; 2 Strob., 77; 6 Ency. of Ev., 737; 52 S. E., 12; 78 Ala., 474; 75 Pac., 1093; 22 S. W., 371; 29 Ala., 20; 20 La., 839; 21 Cy-c., 840.

Petition! in the original jurisdiction of this Court by F. P. Welsh for injunction against J. H. Getzen, Cook McKie and others as trustees of High School District No. 1, of Aiken County. The petition is : •The pétition of F. P. Welch above named petitioner, respectfully shows unto the Court: I. “That he is a duly qualified elector, resident and taxpayer of Schultz township, in the county of Aiken and State of South Carolina.

Before Watts, J., Bamberg, March term, 1909. Action by Leda K. Mayfield against Southern Railway Co. — Carolina Division. From- judgment for plaintiff, defendant appeals. cite: Adverse holding of right of way can only be proved by facts, not by conclusions: 59 S. C., 162; 48 S. C., 472; 54 S. C., 405.

<p>Evidence — Admissions—Charge.—Unless admissions of a party against interest are acted upon by the adverse party under circumstances which create an estoppel, they are not conclusive but may be explained, or the fact shown to be otherwise, and the effect of such rebutting evidence is for the jury. Hence an instruction that “a man is not going to make an admission against himself if it is not true” invades the province of the jury.</p>

Before MemmingER, J., Lancaster, June, 1909. Petition in Circuit Court by .

Before Hydrick, J., Lancaster, December, 1908. Two cases tried together: (1) J. B. Aiken against Lancaster Cotton Mills and C. B. Skipper, and (2) Sarah Aiken against same. From order sustaining demurrers to both complaints, both plaintiffs appeal. Oral argument. cite: A defective warrant zvill not sustain an action for malicious prosecution: 57 S. C., 256; 2 McM., 170; 2. Hill, 499; 72 S. C., 189.

Before Ardrich, J., Horry, April, 1909. Action by Joseph L. Bell and Robert L. Bell against Gardner & Lacy Lumber Co. From judgment, for plaintiffs, defendant appeals. cite: Exception in deed is to be construed against grantor: 41 la., 224; 3 Am. Dec., 500; 34 Barb., 566; 62 N. Y., 592; 86 Pa.

Before Aldrich, J., Anderson, Fall term, 1909. Indictment by city of Anderson in Mayor’s Court against Andrew Johnson for selling whiskey. From order of Circuit Court reversing judgment of Mayor on ground that that Court had no jurisdiction of the case, City of Anderson appeals.

<p>Before Gary, J., Kershaw, September, 1909.</p> <p>Action by Sidney Barfield against Stevens Mercantile Co., William Hammond, Walter M. Stevens and John Clyburn. From judgment for plaintiff, defendants appeal.</p> <p>cite: The act does not prevent others from weighing cotton: 62 Miss. 469. If so construed, the act violates the due process clause of the Constitution: 53 S. C., 259; 78 S. C., 445; 1 Tied. State & Fed. Con. of P. & P., 261; 160 111., 459; 141 111., 171. The act is special legislation: 82 S. C.., 352; 51 S. C., 51; 61 S. C., 205.</p> <p>Oral argument.</p>

<p>Alimony — Contempt.—The Court cannot require a husband to pay alimony to his wife by attachment proceedings by committing him to jail until he finds employment, where he has no income, no property, no trade, profession or employment.</p>

<p>Before Aldrich, J., Barnwell, July 1908.</p> <p>Action by J. J. Harter against Charleston & Western Carolina Railway 'Company, Columbia, Newberry & Laurens Railroad and Atlantic Coast Line Railroad. From Circuit order modifying judgment of magistrate, W. R. Brabham, defendant, Atlantic Coast Line Railroad, appeals.</p> <p>cite: The shipment was interstate: 81 S. C., 162, 169; 29 S. C., 510; 187 U. S., 616.</p> <p>cites: The C. & W. C. Ry. should not have been dismissed: 69 S. C., 326.</p>

<p>Before Wilson, J., Hampton, fall term, 1909.</p> <p>Action by Marshall, Springs & Co. against E. G. Smith. From judgment for defendant, plaintiff appeals.</p> <p>cites: Court should construe written instruments: 74 S. C., 319; 81 S. C., 229. Part performance by one party binds the other: 80 S. C., 574. After condition broken legal title to chattels vests in mortgagee.</p> <p>cite: Mortgagee may attack mortgage for fraud: 38 S. C., 199. 30 Mo. App., 32; 18 Ency. P. & P., 550. Judge not required to charge request not submitted in writing: 78 S. C., 401; 79 S. C., 131. Whether there ivas any evidence to sustain the verdict cannot be considered now: 83 S. C., 203, 276, 277.</p>

<p>1. Rule 27 of this Court does not apply to a case begun before its adoption.</p> <p>2. Amending Pleadings.- — -The Circuit Court has power to allow a complaint amended after this Court has remanded it for new trial.</p> <p>3. Evidence. — The partnership agreement between other parties and defendant here objected to by defendant was competent as tending to aid the Court in ascertaining the meaning' and effect of the papers passed between plaintiff and defendant out of which came the liability sued on, and it was further competent as tending to support the testimony of defendant that he had agreed to pay and did pay the amount of this mortgage debt to plaintiff.</p> <p>4. Ibid. — The writing between the parties here involved, including assignments of notes and mortgages, expressing no consideration and setting out no contracts, but only results of acts, parol evidence was admissible to show the consideration therefor and the contract between the parties and not within the rule of tending to impair or add to written instruments.</p> <p>5. Statutes of Frauds — Consideration.—Stay of foreclosure proceedings, assignment of mortgages and of quarry products, is such consideration for paying the debt of another that the proof of it by parol is not within the statute of frauds.</p> <p>6. New Trial. — Reducing verdict by new trial nisi was only correcting here error in verdict.</p> <p>7. Collateral.- — Charge here complained of only meant to instruct jury that if a debtor secure his debt with collateral and the collateral is sold for less than the debt, he is liable for the balance.</p> <p>8. New Trial. — No error here in refusing new trial asked for on ground of newly discovered evidence, consisting of bank books, which were all the while accessible to movant, no reason being assigned for not examining them before the trial.</p> <p>9. Rehearing refused.</p>

<p>1. Carrier — Passenger—-Negligence—Wilfulness.—It is the duty of every employee of a railroad train to try to stop the train and look after a pasesnger who has fallen from the cars, and the failure to do so by one seeing him fall is a wilful disregard of duty.</p> <p>2. Ibid. — Ibid.—Ibid.—Issue.—Whether due care required a train auditor, who accosted a passenger on the steps of the car as to his fare, and who put himself in a perilous position while the train was running at a rapid speed to convince the auditor he had done so, to safeguard such passenger, is for the jury.</p> <p>3. Ibid. — Ibid.—Issue—Contributory Negligence. — While it is primarily negligence for a passenger to go on the platform of a moving car, yet if he is compelled to go there in case of sudden sickness through decency because the water-closet was locked, whether he was guilty of contributory negligence in loosening his hold on the guard rail and falling from the car, is for the jury.</p> <p>4. Ibid. — Ibid.—The instruction that “an injury to a passenger on a train is itself prima facie evidence of negligence on the part of the railroad company,” under the testimony in this case, was prejudicial to appellant in that it did not limit the injury to “some act of omission or commission of the servants of the carrier or some defect in the instrumentality of transportation.”</p>

Before Watts, J., York, February term, 1908. Action by Maggie Robertson against Fraternal Union of America. From judgment for plaintiff, defendant appeals. cites: Certificate improperly admitted: 28 S. C., 431; 29 S. C., 560; Bliss on U. L, secs. 34, 44, 61; 67 Penn., 108.

Before Memminger, J., Spartanburg, January term, 1909. Indictment by City of Spartanburg against J. R. Parris. From circuit order affirming judgment of city council, defendant appeals. No citations. cites: The constitutional provisions as to mixing service between government departments does not apply to cities: 61 S. C., 103; 3 Brev., 533; 17 Md., 331; 2 Abb. Mun. Corp., sec. 570. City ordinance not unlawful: Crim.

<p>1. Witness. — A trial Judge may properly ask questions of a witness which indicate no intimation as to his opinion of the weight of the evidence or of the facts of the case.</p> <p>2. Charge — Homicide.—In the absence of a plea of justification it is not prejudicial error to charge there is only one form of justifiable homicide.</p> <p>3. Ibid. — Self-Defense.—Where the law of self-defense would not have been applicable under the undisputed evidence is it not necessary to charge it.</p> <p>4. New Teial. — Evidence which it is not shown could not have been discovered before the trial by due diligence and which is merely cumulative would not support a motion for new trial.</p> <p>5. Ibid. — Appeal.—Decision of trial Court on motions for new trial on after-discovered evidence in a law case is not reviewable here.</p> <p>6. A sentence to be hanged- “at the usual place of execution” does not mean to be publicly executed.</p>

<p>1. Defining assault and battery as intentionally shooting another when one has no right to do it, is not error.</p> <p>2. Charge — Self-Defense.—It is not necessary to immediately follow the instruction that the burden is on defendant to establish the plea of self-defense with the instruction that it is incumbent on the State to establish every material allegation in the indictment beyond a reasonable doubt, but it is enough if the points are covered in the charge.</p>

<p>Before Memminger, J., Greenwood, October term, 1908.</p> <p>Indictment against Dave McKellar, for assault and battery with intent to kill. From sentence, defendant appeals.</p> <p>cites: What happened after affray improperly admitted: 11 Ency. P. & P., 301; 68 S. C., 804, 276; 11 Ency. Ev., 403. Charge that shooting at another makes out the crime of assault is misleading: 72 S. C., 202; 3 Brick. Sack. Inst., sec. 4616; 21 S. C., 595; 28 S. C., 4; 47 S. C., 489. Error to leave to jury to say if defendant was required to retreat: 158 U. S., 550; 13 S. C., 466. Sentence is not responsive to the verdict: 19 Ency. P. & P., 439; 70 S. C., 387. And is void for uncertainty: 19 Ency. P. & P., 474, 484. 3 McArthur, 24; 76 111., 499. This Court can only reverse the judgment below: Hughes Crim. L. Proc., sec. 3344; 45 111., 90; 4 Bl. Corm., 393.</p>

<p>Constitutional; ■ Law — Tout—Debt.—A judgment for damages for injury from a battery is not included in the constitutional provision as to imprisonment for debt and may be enforced against defendant by imprisonment by execution against his person after milla bona return on execution against his property.</p>

Before Gary, J. Sumter, April, 1909. Action by Archie China against J. R. Courtney. From order changing venue, plaintiff appeals. cites: Order to dissolve attachment was without the notice: 53 S. C., 106.

Before Memminger, J., Chester, Summer.term, 1909. Indictment against James Stevenson for murder. From sentence, defendant appeals. cites: A man is not required to retreat from a trespasser in his own home: 25 Ency., 273; 24 Am. St. R., 844; 21 Cyc., 823, 828; 82 S. C., 488.

Before Gage, J., Colleton, Fall term, 1907. Action by Mary J. Anderson against Western Union Telegraph Co. From judgment for plaintiff, defendant appeals on the following exceptions: 1. “Because the Circuit Judge erred' in declining to hear motion of defendant’s attorney to strike out the words ‘negligently and carelessly’ in paragraphs four and six, and the word's ‘gross and reckless negligence’ in paragraph seven and the words ‘in consequence of defendant’s gross…

Before Gag®, J., Darlington, February 27, 1909. Action by James A. Cole, as assignee, against L. M. Ward, C. B. Edwards, E. E. Carrigan and John McSween. From order permitting defendants, Carrigan and McSween, to amend their answer, defendant, Edwards, appeals. cites: Limitation on power to allow amendments: 80 S. C., 216; 81 S'. C., 579; 83 S. C., 578; 80* S. C., 218; 79 S. C., 272; 81 S. C., 579.

Before Krugh, J., Richland, June, 1909. From order granting further time to- serve “proposed case” for appeal in Mary L. Deal against Margaret E. Deal and A. M. Deal, plaintiff appeals. cites: Time should not have been extended: Code of Proc., secs. 345, 348, 349; 36 S. C., 599; 12 S. C., 559; 16 S. C., 112; 59 S. C., 479; 40 S. C., 546; 35 S. C., 592, 607J 14 S. C., 166; 58 S. C., 33; 59 S. C., 215; Rule 50, C. C. cites: This appeal should be dismissed: 12 S'.

Before Gage, J., Darlington, February, 1909. Indictment against Robert Johnson for rape. Prom sentence, defendant appeals. cites: That the prosecutrix failed to identify others is competent: 47 S. C., 67; 12 Cyc., 392, 430 ; 22' N. W., 15. Admission of irrelevant testimony is harmless: 38 S. C., 381; 28 S. C., 121; 47 S. C.,73.

Before Wilson, J., Lexington, September, 1909. cites: Charge as to evidence of an accomplice is on the facts: 48 S- C., 148; 38 S'. C., 31; 60' S. C., 527; 83 S. C., 37. cites: Error in ■charge, if favorable to defendant, is not reversible error: 50 :S. C., 52, 104; 51 S. C., 225.

Before Keugh, J., Lancaster 1909. Indictment against John Sowell, William Gardner and Mac. Truesdale for housebreaking and larceny. From sentence, defendants appeal. cites: As proof of corporate existence: 28 Ind., 322; 32 Col., 166; 49 Cal., 344. Fvidence of entries before and after one charged is competent here: 168 N. Y., 292; 181 Mo., 189; 35 S. C., 340.

Before DeVorE, J., Spartanburg, October, 1909. Action by S. M. Wetmore, Receiver, against H. R. Scalf. From order overruling demurrer, defendant appeals. cite: Question of jurisdiction may be raised at any time. 16 S. C., 276; 24 S. C., 392; 25 S. C., 385; 49 S. C., 29; 53 S. C., 198. Defendant must be sued in the county of his residence: Code of Proc., 146, 147, 144; 25 S. C., 587; 53 S. C., 198; 5 Pom. Fq. Jur., 366.

<p>Before Prince, J., Aiken, April, 1908.</p> <p>Action by Nicholas Vlasservitch against Augusta & Aiken Railway Company. Prom circuit order affirming judgment of magistrate, W. M. Snioalc, defendant appeals.</p> <p>cites: As to personal baggage: 70 S. C., 337; 71 S. C., 221; 75 S. C., 351; 76 S. C., 239; 3 Ency., 529; 6 Cyc. 666; 6 Q. B., 612; 11 Am. R., 716; 20 Or., 392; 9 Hump., 621; 3 Ency., 530-1; 6 Cyc, 669; 3 Ency., 513-1; 6 Cyc., 661-8; 1 Strop, 168; 71 S. C., 221; 13 E. R. A., 281; 18 R. R. A., 715; 21 Am. R., 218; 13 Am. R., 200; 93 Am. D., HO; Story on Bail., sec. 199; 21 Am. D., 129; 87 Miss., 610; 6 A. & E. Ann. Cas., 826; 5 St. Ry. R., 61; 79 Conn., 565; 17 N. Y. App. Div., 202; 18 L. R. A., 715 ; 30 Am. R„ 667; 13 Am. R., 200 ; 3 Ency., 511; 81 S. C., 113. Judgment for punitive damages alone should be set aside: 60 S. C., 67; 70 S. C., 118; 77 S. C., 62, 519; 12 Ency., 29. Elements warranting punitive damages: 61 S. C., 121; 29 S. C., 153; 51 S. C., 505; 60 S. C., 71; 57 S. C., 331; 52 S. C., 312; 51 S. C., 302; 12 Ency., 13; 13 Cyc., 112-, 109; 69 S. C., 139; 2 Suth. on Dam., 1093; 81 S. C., 183; 71 S. C., 393; 62 S. C., 270; 61 S. C., 121.</p> <p>Oral argument.</p>

<p>Jurisdiction — Counties.—The Court of Common Pleas has no original jurisdiction of a suit against a county on contract.</p> <p>Cunningham v. Clarendon County, 81 S. C., 201, affirmed.</p>

<p>Before SlasL, J., Union, August, 1909.</p> <p>Action by J. H. Wilkes & Co. et al. against B. E. Arthur et al. From order of reference the defendants, Exchange Bank and Trust Co. et al., appeal.</p> <p>cite: Code of Proc., 293; 34 S. C., 169; 64 S. C., 29-3; 55 S. C., 379; 69 S'. C., 186; 73 S. C., 198; 77 S. C., 186.</p> <p>cite: 29 S’. C., 26; 73 S. C., 189, 227; 49 S. C., 425 ; 22 S. C., 292; 33 S. C., 530 ; 53 S-. C„ 583; 79 S. C., 9; 84 S. C., 495; 64 S- C., 291; 34 S. C., 173; 24 S. C., 550; 65 S. C., 456; 27 S. C., 238; 34 S. C., 172; 53 S. C., 583; 79 S. C., 1; 81 S. C., 495; 83 S. C., 495; 78 S:- C., 196.</p>

Before Klugh, J., Fairfield, February, 1909. Action by Addie J. Williford against Southern Railway Company and W. G. Chitty. From judgment for plaintiff, the defendant railway appeals. cites: As to proximate cause: 52 S. C., 334; 76 S. C., 304; 58 N. W. R., 393. Negligence of plaintiff: Moore on Facts, sec. 381; 81 S. C., 193. cite: Duty of carrier to light premises: 57 S. C., 333; 7 R. & M. Dig. Ry. Daw, 333-3; 65 S. C., 339; 39 S. C., 163; 58 S. C., 494.

<p>Specific Performance. — Where the contract is to execute a deed if grantor can remove a mortgage lien on the lands, if not then to execute a lease for a specified time, if grantor cannot remove the mortgage lien, specific performance should be decreed of the execution of the lease.</p>

Before DeVorE, J., Cherokee, December, 1909. Action by A. N. Wood against W. H. Ross as Mayor et al. The important part of the decree of Judge Sease is set out in the concurring opinion of Mr. Justice Gary.

Before Memminger, J., Chester, August, 1909. Action by Samuel D. Mobley and Frank M. Durham, administrators with will annexed of Samuel W. Mobley, against Frel Mobley, Alline M. Green et al. From circuit decree, some defendants appeal. cites: Rules of construction of wills: 29 S. C., 470; 28 S. C., 129 ; 27 S. C., 297; 26 S. C., 462; 20 S. C., 428; 26 S. C., 179; 17 S. C., 636; 23 S. C., 232; 30 S. C., 188; 27 S. C., 297; 7 Rich.

<p>Before DantzuEr, J., Anderson, June, 1909.</p> <p>Indictment against Watt Burriss. From sentence, defendant appeals.</p> <p>cites: When is the right time: 3 Green., sec. 75 ; 16 Ency., 707; Bish. Cr. L., sec. 101. Discrediting witness: 52 S. C., 585.</p>

<p>Before Watts, J., Barnwell, May, 1909.</p> <p>Action by Mary E. Craddock against Annie E. Weekley, S. J. Hogg, G. Price Hogg and Jno. F. Weekley. From judgment for plaintiff, defendants appeal.</p>

Before C. C. FeathErstone, Special Judge, Greenwood, April term, 1909. Action by J. D. Dilleshaw, against Charleston and Western Carolina Ry. Co. From judgment for defendant, plaintiff appeals. cite: An instruction should not he given when there is no evidence to support it: 66 S. C., 250; 60 S. C., 387; 67 S. C., 146. Requests should he charged or refused: 66 S. C., 447; 67 S. C.,'181.

<p>1. Striking Out Answer.' — The answer here sought to be stricken out as frivolous is clearly not so, as it sets up new matter by way of defense or counterclaim which presents an issue for trial.</p> <p>2. Attorneys. — Contract here between attorney and client construed to mean that for a certain consideration therein expressed the attorney agreed to sue the note to judgment and exhaust the process of execution and services rendered thereafter by authority from client in other litigation with reference to the judgment were outside of the contract and no compensation having been agreed on for them, it was proper to submit the value thereof to the jury.</p>

<p>1. Evidence — Magistrate Court — Appeal.—Admission of printed reward for return of a horse in claim and delivery is harmless, if error here, because no objection was made to it when offered and its contents was testified to by other witnesses without objection. The objection is also technical, which objections are disregarded by the Circuit Court on appeal from magistrate court.</p> <p>2. Appeal. — Exceptions involving questions of fact on appeal from circuit judgments in appeal from magistrate’s courts will not be considered here.</p>

<p>Before Shipp, J., Greenwood, Fall Term, 1909.</p> <p>Action by Thomas Seigler by guardian ad litem against Southern Ry. Co. From order refusing motion to amend, plaintiff appeals.</p> <p>cites: 6 S. C., 126; 17 S. C., 481; 59 S. C., 81; 83 S. C., 530.</p> <p>Oral argument.</p>

<p>Actions — Mortgagor and Moutgagee. — The mortgagor of a chattel after condition broken may, by the consent of the mortgagee or without his consent after demand and refusal, maintain an action against a third party for negligent injury to the chattel. How defendant may protect himself against claims of mortgagee stated.</p>

<p>3. Evidence. — A catalogue of machinery repairs properly excluded here as it was not properly proved and not relevant to any issue raised in the pleadings.</p>

Before Memminger, J., Cherokee, February Term, 1909. Action by J. M. Pinson against Southern Railway Co.- — - Carolina Division. From judgment for defendant, plaintiff appeals. cites: Deceased was a passenger when killed: Pat. Acc. B., section 331; 2 Ency., 745. Duty of carrier to drunken passenger: 52 S- C., 19, 330'; 4 Ency., 79; 70 L. R. A., 291; 168 U. S-, 339; 151 U. 5., 209; 149 U. S-, 43. Liability for exposure of remains: 61 S. E., 278; 75 S. C., 140.

Before Shipp, J., Beaufort, July, 1909. Action by Charles Howard against town of Port Royal in court of magistrate, Thomas G. White. From circuit order affirming judgment of magistrate, defendant appeals. cites: Officers deposed by Court were in possession and were de facto officers: 80 S. C., 66; 8 S. C., 473; 8 Ency., 793; 66 S. C., 1; 67 S. C., 236. Acts of such officers are valid: 73 S'. 'C., 401; Cromer v. Boinest, 27 S. C.; 8> S'. C., 408 ; 8 Ency., 820; 823.

Before Memminger, J., Spartanburg, March term, 1909. Action by Larry E. Lowe, by guardian, against Southern Ry. From judgment for plaintiff, defendant appeals. cite: Ruling out writing was error: 1 Moore on Facts, sec. 666; 18 S. C., 508. N. C. Statute does not take away defense of contributory negligence: 52 S. F., 129; 32 S. F., 679; 47 S. F., 466; 58 S. C., 495; 77 S. C., 344.

Before Gage, J., Greenwood, April, 1908. Action by Alice Milton against Rebecca I. Pace. From judgment for defendant, plaintiff appeals. cites: Was trustee holding for remaindermen as well as life tenant: 33 S. C., 73; S3 S. C., 335; 35 S. C., 519; 36 S. C., 398. Did statute of uses execute the use: 4 Rich. Eq., 476; 78 S. C., 153; 10 S. C., 585; 54 S. C., 396, 433; 76 S. C., 486; 33 S- C., 115; 43 S. C., 347; 67 S. C., 131.

Before Klugh, J., Fairfield, March, 1910. Action by Jno. C. McMeekin against Southern Ry. in court of magistrate, T. M. Cathcart. From circuit judgment affirming judgment below, defendant appeals. cites: Appellant is not liable under the bill of lading: 75 S. C., 321; 78 S. C., 46; 66 S. C., 477. Nor is defendant liable for penalty under 2¿¡. Stat., 81: 78 S. C., 46. Nor under section if 10 of Code. Oral argument.

Before Watts, J., Barnwell, May, 1909. Action by W. C. Rountree et al. against Frank H. Rountree et al. and Carrie Ashley. Held: that the said proceeding of J. B. Rountree, by his next friend, in the probate court against Rountree et al., was not a proceeding for partition, and had none of the characteristics of a partition proceeding, and his Honor should have so held. 6. “That his Honor erred in holding that the said deed was not delivered by the grantor, J.…

<p>Injunction — Appeai,.—An order staying proceedings pending appeal should be made only when it appears the party making the application has just reason to apprehend that without a stay he would be deprived of the favorable result of the appeal.</p>

Before DeVorE, J., Colleton, March, 1909. Proceeding under agricultural lien by W. Fred. Lightsey and J. F. Rentz. From order on motion, requiring defendant to pay amount claimed, he appeals. cite: Court should have excused default: 14 S. C., 476; 7 S. C., 264; 2 L. R., 2 P. Div., 211; Suth. on Stat.

Before Shipp, J., Beaufort, September, 1909. Action by the Savannah Supply Co. and Irish American Bank against Atlantic Coast Line R. R. Co. The contract referred to is: “State of South Carolina, Beaufort County. “This agreement, made and entered into this 31st day of January, A. D. 1902, between the Charleston & Savannah Railway Company, a corporation duly established under the laws of the State of South Carolina, party of the first part, and Savannah Building and Supply…

<p>1. Payment. — A joint and several maker of a note cannot plead as a defense to his joint and several liability an oral agreement by which he has been released from liability by payment of one-half of the note.</p> <p>2. Motions to amend pleadings are addressed to the discretion of the trial Judge and his action is not reviewed except in cases of abuse of discretion.</p> <p>3. Under general denial to a complaint alleging payments on a note sued on, defendant may prove other payments than alleged.</p>

Before Klugh, J., Richland, June term, 1909. Action by Clara Best against Columbia Street Railway, Right & Power Co. From judgment for plaintiff, defendant appeals. cite: Physical examination of plaintiff by defendant’s physician: 16 Ency., 812; 14 Cyc., 365; Wig. on Ev., 3019; 102 Am. St. R., 563; 19 R. R. A., 641; 46 R. R. A., 448; 24 Am. St. R., 764; 55 Am. R., 584;.9 S. E-, 602; 47 la., 375; 54 R. R. A., 396; 88 Am. St. R., 232; 80 Am.

Before Shipp, J., Greenville, March, 1909. Action by A. A. Cobb against Western Union Telegraph Company. From judgment for plaintiff, defendant appeals. cite: Mental anguish incidental to information; 70 S. C., 422; 72 S. C., 120, 294; 73 S. C., 220. Negligence not proximate cause of injury: 69 S. C., 531; 72 S. C., 522; 76 S. C., 536; 27 S. W., 52; 78 S. W. 492. cite: Negligence was shown: 69 S. C,, 550 ; 76 S. C., 306; 77 S. C., 62.

Before Shipp, J., Greenville, August, 1909. Action by Whitner Symmes against J. O. Cauble and T. E. Harris. From judgment for defendants, plaintiff appeals. cites: Deed should be strictly construed against Cauble: 36 Ency., 138. True test: 4 Rich. Eq., 533; 52 S. C., 91; 56 S. C., 46; 26 Ency., 138-9. Liability of income: 28 Ency., 944; 86 Am. Dec., 513; 13 Alt., 927; 44 Am. Dec., 105. Not exempted: 79 Am. St., 304; 12 Am.

<p>Before Wilson, J., Bamberg, November Term, 1908.</p> <p>Action by W. P. Blume against Southern Railway. From judgment for plaintiff, defendant appeals.</p> <p>cites: Right to right of way of railroad company cannot be acquired by prescription: Code, 1903, 3194 ; 67 S. C., 499; Thomp. on Corp., sections 5979 and 6137; 101 U. S., 87; 64 Pac., 373; 31 N. E., 339; 64 Fed., 506. Use requisite to acquire title by prescription: 33 Ency., 190, 1193; McC. R., 445; 36 Minn., 373; 36 Vt., 503; 53 S. C., 503; 37 S. C., 549; 6 Rich., 396; 5 Rich., 311 ; 1 Bail., 56, 341; 63 Me., 445; 61 Me., 417; 14 Nev., 161; 33 Ency., 1333.</p> <p>cite: Title by prescription may be acquired against a fee by deed: 73 S. C., 338; 54 & C., 397; 67 S. C„ 506.</p>

Petition for injunction by- H. L. McLaurin, D. L. McLaurin and others, taxpayers of the school district of McColl, against W. G. Tatum, L. M. Morrison and B. B. Smoot, as trustees of the school district in the original jurisdiction of the Court, to enjoin the issuance of bonds.

<p>1. Railroads — Communicated Fires.' — Under section 2136, Code, 1902, a railroad company operating a railroad and granting trackage privilege to others to operate engines and cars on its tracks under its train orders is liable for damages caused to the property of others by lire communicated by the engine of such party.</p> <p>Rogers v. R. R. Go., 31 S. C., 378; Hunter v. R. R., Go., 41 S. C., 86, and Lipfield v. R. R. Go., 41 S. C., 286, distinguished from this case.</p> <p>2. Amending Pleadings. — Permitting complaint amended after evidence in so as to conform to the proof by alleging the acts complained of to have been done by the authorized servants and agents of defendant, which did not substantially change the claim of plaintiff, held not an abuse of discretion.</p> <p>3. Charge to the effect that parties acting under the orders, direction and authority of defendant are its agents, although they may be known as agents of another, is not on the facts, as it is hypothetically stated and assumes as true no fact in dispute.</p>

<p>1. Carrier. — Evidence.—Rules of a carrier of passengers for the conduct of its employees, the disobedience of which tended to show negligence which contributed to the injury, is admissible in an action for injury from negligence of the carrier’s employees whether the injured knew of the rule or not.</p> <p>2. Ibid. — Street Railway. — Charge here held not to impose upon street railway companies the duty of: (1) giving signals at crossings, (2) doing whatever a steam railway would do to signal its approach to a crossing, (3) giving specific warning on approaching crossings, (4) doing what the statute law required as to signals, but only to do the things dictated by common and ordinary prudence under the circumstances.</p> <p>3. Punitive damages may be awarded where a street railway ran its car into a wagon crossing the street, which was seen by the motorman several hundred yards ahead but made no effort to notify the driver nor to stop the car nor to have it under control.</p>

Before Hydrick, Charleston, March term, 1908. Action by E. A. Mills against Atlantic Coast Bine R. R. Company.

Before C. C. FeatherstonE, Special Judge, Greenville, June, 1909. Three actions by W. N. Austin et al. v. F. D. Hunter, against T. D. Woods and against J. Arthur Todd. From judgment for defendants, plaintiffs appeal. cite: Kind of evidence to warrant reformation: 67 S. C., 385. What mistake equity will relieve against: 67 S. C., 384; McM. Eq., 453; McC. Ch., 113; 1 Pet., 1; 3 Pom. Eq.

<p>Wills — Limitation op Estates. — A devise to my son John and his heirs and if he dies leaving no children, then over, vests in John a fee simple, defeasible upon his dying without children.</p>

<p>Before Krugi-i, J., Richland, June, 1909.</p> <p>Action by Kate Kirby Chartrand against Southern Railway Company. From judgment for plaintiff, defendant appeals.</p> <p>cites: Appellant relieved by delivery according to statute to connecting carrier: Sec. 2176, Code, 1902; 77 S. C., 490; 81 S. C., 111.</p> <p>Oral argument.</p>

Before Gary, J., Marlboro, Fall term, 1908. Action by Eureka Elastic Paint Company against Bennett-Hedgpeth Co. From, judgment directed for plaintiff, defendant appeals. cite: When right to recover should have been exercised: 24 Ency., 1111, 1089, 1081; 15 S. C., 118; 15 Ency., 1230; 23 Ency.. 585; 24 Ency., 1088, 1118; 57 S. €., 507. cite: Contract complete on delivery: 59 S. C., 588.

Before DeVorE, J., Charleston,- Action by Wm. Brown and Rosa Brown, his wife, against Western Union Tel. Co. From judgment on verdict directed for defendant, plaintiffs appeal. cite: This action is ex delicto: 70 O. C., 87; 71 & C., 3-86; 79 S. C., 162'. Case controlled by law of this State: 80- St C., 2-12; 79 S. C., 162. Recovery liens as consequences of the negligence were here: 34 L. R. A., 494; 10 Id., N. &, 256; 69 S-.

Before Aldrich, J., Anderson, October, 1909. Partition suit by 'C. A. Davis et al. against Jno. T. Milford, admr., et al. From Circuit decree, W. H. Pruitt appeals. cite: Legislature has the power to pass th'e act: 5 Cyc., 632. Construction of the act: 2 Swan, ■446; 39 A., 72; 16 R. I., 579; 77 Pa. St., 81; 86 Tenn., ■459; 175 N. W., 1091; 39 Ky., 170; 1 D R. A. (N. S.), 773; 5 L. R. A., 455; 22 S. E., 155; 17 Ency., 25. Oral argument.

Before Watts, J., Clarendon, December, 1908. Action by D. W. Alderman against L. L. Wells treasurer of Clarendon County. From judgment dismissing complaint, plaintiff appeals. cite: As to due process of law and the equal protection of lazo: 27 Ency., 590; 13 Eed., 722; 18 Fed.,-385; 118 U. S., 394; 115 U. S., 337; 134 U. S., 232; 165 U. S., 150; 82 Fed., 258; 67 Am. St. R., 579; 64 Am. St. R., 600; 183 U. S., 79; 78 Am. St R., 29; 89 Am.

<p>1. Appeal — Magistrate Court — Res Judicata — Rules of Court.- — Order of Circuit Judge granting new trial because of error in magistrate court in refusing motion for nonsuit as to cause of action for wilfulness is not binding on magistrate court on the new trial. Rule Sit of this Court does not apply to appeals from magistrate courts.</p> <p>S. Appeal. — There being evidence of wilfulness and of ownership of property, the judgment of the Circuit Court affirming judgment of magistrate is conclusive on these points.</p> <p>3. Verdict in an action on two causes of action is not irregular in that it finds separately an amount of actual and of punitive damages.</p>

<p>Attorney’s Pees. — In a proceeding to appoint a receiver to take possession of the property and run the business of a failing merchant, an attorney representing the plaintiff, the receiver, some of the creditors and the defendant debtor in the beginning of the action cannot have assessed under reference against the fund in Court his fees for services rendered the defendant debtor.</p>

Before W. H. Hunt, Special Judge, Spartanburg, July-Term, 1909. Action by P. D. Cone against Southern Railway Company. From judgment for plaintiff, defendant appeals. cite: There was no delivery to defendant as á common carrier: 6 Cyc., 412; 70 S. C., 329; 76 Am. St. R., 899. Nor as a warehouseman: 5 Cyc., 165; 6 Cyc., 412. Nor was there constructive delivery: 1 Hutch, on Carriers, sections 112, 118, 115.

Motion- by respondent in- case of B. C. Thomas and Minnie Thomas against W. S. Lynch and Z. C. Lynch. The motion wa9 resisted on ground that an attorney employed in the case after trial had been furnished the papers and on examination found some of them missing, and his effort to procure them by mail delayed by delay of letters, and the attorney of récord was out of the- State, resting on the supposition that the “case” had been prepared and served.

<p>Jurisdiction — Judgment.—A Circuit. Judge at chambers has no power to make a final order for judgment in injunction proceeding on the merits.</p>

Before C. C. FeathErstone, Special Judge, Greenwood, April term, 1909. Action by C. M. Sullivan against Charleston & Western Carolina Railway Company. From judgment for plaintiff, defendant appeals. cites: Character of witness for professional ability: 3 Wig. on Ev., sec. 1984; 99 Mo., 179; 84 Pa., 208; Lawson’s Ex. & Ap. Ev., 236. Bttrden of Proof: 5 Ency., 21, 30, 39, 40; 16 Cyc., 926, 932, 933, 934, 935; 4 Wig. on Ev., secs. 2487-90.

Before Prince, J., Sumter, November, 1907. Action by Frank E. Thomas, against Atlantic Coast Line Railroad Company. Erom judgment for plaintiff, defendant appeals. cites: Bill of lading may be explained, 6 Cyc., 416, 421; 1 Green Ev., sec. 305; 4 Ell. on R. R., sec. 1419; 1 Hutch, on Car., sec. 158; 23 Ela., 463 ; 61 Am. St. R., 253 ; 1 Bail., 174; 27 S. C., 376; 9 S. C., 92; 130 U. S., 416; 4 Ency./526; 96 S. W., 488; 7 Current b., 1543 ; 9 L. R. A., 268; 38 Am.

Before Purdy, J., Union, July, 1909. Action by Seaboard Air Line Ry. v. Ada L. Garrett. From Circuit decree, dismissing complaint, defendant appeals. cites: Deed cannot carry right to compensation: 11 Rich., 91. cite: The wife under the will had power of dividing and granting the land: 22 Ency., 1123a, 6, 1124b; 1125c, 7d; 1107, 3; 10 S. C., 45. Wife could only convey estate she had to- railway company: 69 S. C., 481; 9 Rich.

Petition in the original jurisdiction- of this Court by the trustees of the University of South Carolina for injunction against the trustees of the Academy of South Carolina. cite: As to jurisdiction: Art. V, sec. 4, Con.; art. IV, sec. 4, Con., 1868; 8 S. C. 374; 27 S. C., 625; 30 S. C., 1; 49 S. C., 378; 57 S. C„ 166; 78 S. C„ 286; 80 S. C., 120, 512; 78 S. C., 187; 26 S. C., 1.

<p>Condemnation — Cities and Towns — Waters—Damages.—A landowner who suffers damages to her lands by reason of the municipality changing the grade of the streets and gathering the surface water into a covered drain and discharging it on the lands in concentrated flow cannot maintain condemnation proceedings for damages, but must bring action under section 2023 of Code of 1902.</p>

Before Watts, J., Georgetown, October term, 1909. Indictment against W. B. Avant and G. C. Bigham for murder of Ruth Crisp Bigham. Defendants appeal from sentence for manslaughter. cites: As to notice of appeal: 14 S. C., 572; 56 S. C., 54; 19 S. C., 602'. Recital in order is sufficient: 3 L. R. A., 754; 35 S. W., 337; 40 Tex., 502; 30 Pac.; 732; Cr. Code, 73; 16' Cyc., 684; 18 How., 530; 166 111., 366; 51 Ind., 201.