Volume 86 — South Carolina Reports

<p>Before DanTzlER, J., Anderson, August, 1909.</p> <p>Action by C. B. Earle as trustee for creditors of E. B. Maxwell against E. B. Maxwell et al. Erom Circuit decree, defendant, Maxwell, appeals.</p> <p>cite. Interest of bankrupt is not transferable: 34 Ency., 397; 50 S. C., 208; 10 S. C., 387; 7 Ency., 475; 62 S. C., 487; 23 S. C., 387; 7 Ency., 476; 101 Fed., 233; 106 Fed. 670; 110 Fed., 145; 108 Fed., 520; 9 N. E., 184. Contingent remainder not subject of mortgage: 54 S. C., 423.</p> <p>cites: Bankrupt could transfer his interest that passes to trustee: Sec. 70a of Bankrupt Act; Rem. on Bkrcy., 540, 538, 539; 51 R. R. A., 297. He can transfer his interest: 54 S. C., 423; 62 S. C., 482; 2 Hill Eq., 235; 26 S. C., 451; 23 S. C., 382; 16 Ency., 729-30; 24 Ency., 407; 2 Ency., 1031; 140 U. S„ 529; 99 U. S., 303; 24 Ency', 406-7; 22 Ency., 1034-5; 113 U. S., 340; 1 Hill, 134; 16 Ency., 721; Pom. Eq. Jur., secs. 1285-6, 1287-8; 23 Ency., 260, 263-4; 1 Spear’s Eq., 49; 10 S. C., 414. Remainder may be created in persoml property: 16 S. C., 309; 1 DeS. Eq., 271; 2 Kent’s Com., 352; Pom. Eq. Jur., secs. 1285-6; 2 Bl. Com., 298; 36 S. E., 404; 67 S. C., 482, and may be transferred: 16 Cyc., 653; 19 Conn., 107, 19 N. Y., 384; 179 111., 267; Rice Eq., 459; 73 S. C., 42.</p>

<p>1. Motion to vacate attachment and to release bond because the affidavit was not sufficient and not filed in time comes too late after trial begun without previous notice.</p> <p>2. Appead. — Objection to evidence admitted with assent of appellant with permission to move to strike it out, no motion having been made, will not be entertained.</p> <p>3. Evidence — Contracts.—While the usages and customs of trade are admissible to aid in construing contracts, it was not error under the evidence here to rule out evidence as to the custom in banking circles as to paying for cotton and use of bills of lading in connection therewith.</p> <p>4. Evidence — Letter.—Exclusion of letter by drawer of draft in question to agent of defendant objecting to deductions and demanding return of bill of lading was not harmful to appellant.</p> <p>5. Ibid. — Evidence tending to show dealings in cotton by alleged agent of defendant with others for the purpose of showing he was an independent dealer was not relevant here.</p> <p>6. Principal and Agent — Issues.—Evidence here tending to show the drawer of the draft acted as the agent of defendant and that defendant ratified his acts by retaining the bills of lading and the money due for the cotton and that plaintiff had no knowledge of any limitations on the authority of the agent carries the issue of defend- ' ant’s liability to the jury.</p> <p>7. Ibid. — Alleged erroneous instructions as to: (1) the binding effects on the principal of the acts of agents beyond the scope of their authority without notice to the party interested, (3) notice of limitation of agent’s authority derived solely from his dealings, and (3) ratification of acts of agent by retention of property acquired by him, construed with the whole charge, held not error.</p> <p>8. Interest. — Party paying for cotton for benefit of another is entitled to interest on amount paid from date of payment.</p>

The opinion in this case was filed on February 23 (85 S. C-, 54). On application for stay, stay order was filed on March 14, after remittitur had gone. This order was revoked by order filed March 16. Another application for 'recall of remittitur and stay of same on petition for rehearing joined in by respondent was filed April 6, and the following per curiam order made thereon:

<p>Insurance — Subrogation—Parties—Motion.—Where the insured has instituted an action in his own behalf to recover the difference between the loss caused by a communicated fire and the amount of insurance paid the insured, having a subrogation clause in his ■ contract, the insurer should assert its claim to subrogation by a motion to be made a party and to require the complaint amended so as to set out the facts upon which it claimed the equity of subrogation.</p>

<p>Counties — Ejections.—Where an election is held in portions of two counties on the proposition of forming a new county out of portions of the territory of each and the election fails in one county, the validity of the election held in the other is immaterial.</p>

Before Watts, J., Barnwell, Spring Term, 1909. Action by Southern Railway Company and Southern Railway, Carolina Division, against Julia R. Carroll and W. Gilmore Simms as clerk of court. From judgment for defendants, plaintiff appeals. cite: Purchaser with notice from one without is protected: 2 Pom. Jur., secs. 752, 758; 87 A. S., 430; ft Rich. Eq., 177; 20 S. C., 190; 23 S, C., 570; Speer. Eq.’, 211; 31 S. C., 151.

Before Gage, J., Richland, January, 1909. Proceeding by the city of Columbia for mandamus against P. B. Spigener, county treasurer, and W. H. Gibbes, county auditor. From order directing writ to issue, defendants appeal.

<p>Before Gage, J., Barnwell, Fall Term, 1909.</p> <p>Indictment against Frank Hendrix for burglary and larceny. Defendant appeals from sentence.</p>

<p>Before Watts, J., Calhoun, May Term, 1910.</p> <p>Indictment against W. B. Rucker for bastardy. From sentence, defendant appeals.</p> <p>cites: Not necessary to show the child is likely to become a charge on the county: Crim. Code, 494, 495; 10 Rich., 361; 1 Brev., 279; 2 McC., 300. As to offer of compromise: 3 Ency., 881; 20 So., 392; 4 Gray., 568.</p>

Before Shipp, J., Greenville, March Term, 1909. Action by Mollie E. Pollard, administratrix of Chas. Pollard, against Fountain Inn Oil Co. From judgment of non-suit, plaintiff appeals. cite: Master is Habile for injury cau,sed by unsafe machinery: 70 S. C„ 476; 60 S. C., 168; 61 S. C„ 468; 25 Si C., 24; 72, S. C., 421; 74 'S. C., 102; 107 U. S., 453; 35 At. R., 475. Assumption of risks: 80- S. C., 238.

Before DeVorE, J., Beaufort, January 6, 1909. Action by Frank 'Simmons against Okeetee Club and W. D. Thomas. From order of nonsuit, plaintiff appeals. cite: Master is liable for the tortious act of his agent: 27 L. R. A., 166, 172; 14 Id., 737; 31 N. E., 383; 24 L. R. A., 484; 58 S. E., 39; 37 S. C., 380. In exemplary damages: 58 S. C., 143; 68 S. C., 94; 3 A. & E. Ann. Cas., 594; 3 S. C., 6; 25 S. E., 411.

Before Memminger, J., Charleston, February, 1909. Action by Pearl C. Messervy against John E. Messervy. From Circuit judgment for plaintiff, defendant appeals. cite: 80 S. C., 277; 1 Rich. Eq., 282; 10 Rich. Eq., 426. The opinion in this case was filed March 9, 1910, but remittitur held up on petition for rehearing until

Proceeding in the original jurisdiction of this Court by the Seaboard Air Line Railway to enjoin J. H. Earle et al., as railroad commissioners, from enforcing a rate on fertilizers.

Before DpVoRR, J., Charleston, April, 1909. Action by Frank T. Armstrong against A. C. Tuxbury Lumber Company, defendant appeals on following exceptions : 1. “The presiding Judge erred in refusing defendant’s motion for a nonsuit upon the following ground, urged in support'of said motion, namely: That plaintiff’s evidence failed to show that the injury to the plaintiff was caused by any carelessness or negligence on the part of the defendant. 2. “The presiding Judge erred1…

Before C. C. FeathrrstonR, Special Judge, Greenville, June Term, 1909. Action by Samuel Gilliland against Charleston. & Western Carolina Railway. From judgment for plaintiff, defendant appeals. cite: Evidence does not show defect in instrumentalities: 39 S. C., 39; 66 S. C., 256; 69 S. C., 529; 72 S. C., 398. Plaintiff was guilty of contributory negligence: 77 S. C., 328, 42 S. E-, 989, 61 S. E., 292. Plaintiff assumed risks: 80 S. C., 232.

Before GagB, J., Manning, June, 1909. Indictment against Willie Bethune for murder of G. B. Mims. From sentence, defendant appeals. cites: Examination of jurors: Code, 1902, 2821; art. I, sec. 17, U. S. Con., 15 Am., sec. 1; 12 Ency., 359; 57 Cal., 102; McClellan’s Dig. Fla. Stat., sec. 10; Code, 1902, 2944; 27 Fla., 370; 1 Bail., 651. Treachery of deceased: 41 S. E., 803; 12 Rich., 430; 29 S. C., 34; 68 S. C., 304. Opprobrious words: 75 S. C., 494; 82 S. C., 152.

<p>1. Objections to amending an indictment not sustained because: (1) the amendment merely inserted words relating to the description of the offense; (2) the defect was apparent on the face of the indictment and no objection was taken by demurrer or motion; (3) the amendment made the pleading conform to the proof, and it was not made to appear that it changed the nature of the offense or operated as a surprise to the defendant.</p> <p>2. Obstructing Public Roads. — -Where' a road was through woodland, it must be shown it has been used for twenty years and that the user was adverse to establish a prescriptive right in the public. That the public had acquired a prescriptive right to a road running through both arable and woodland is a circumstance from which jury may infer adverse user.</p> <p>3. Ibid. — Opening a new road or one equally as convenient in another place as the old one, is not a defense to an indictment for obstructing a public road.</p>

Before Klugh, j., Darlington, October, 1909. Action by Elias Kelly and Burrell J. Kelly against John Tiner. From Circuit order refusing motion to dissolve temporary injunction, defendant appeals. cite: Judge could have vacated the injunction: 246, Code Proc.; 69 S. C., 159, 52; 27 S. C., 415; 33 S. C., 410; and he should have done so: 16 Eney., 431.

<p>1. Pleadings — Striking Out Allegations. — Greater latitude is permitted in allegations in equity than in law cases. Here appellant has failed to satisfy this Court that refusal below to strike out . allegations of answer in equity was prejudicial.</p> <p>2. Principal and Agent — Broker.—A principal may revoke the authority of his agent except where the authority is coupled with an interest. A third party cannot enforce against a principal a contract for sale of land made with his broker after revocation of the authority of the broker to sell, even though the purchaser did not then know of the revocation.</p> <p>3. Ibid. — Trustee.—It is a violation of the duty of a brokerage company to sell to its president, lands entrusted to it for sale, and he cannot demand specific performance of such contract, which is voidable at the option of the principal.</p>

Before Memminger, J., Richland, November, 1906. Action by First National Bank of Richmond, Indiana, against V. C. Badham. Plaintiff appeals from judgment for defendant on following exceptions: 1. “Because his Honor erred in the admission of testimony on the issues of whether the erasure of the printed provision for attorney’s fees in the two notes sued on herein had been made by the defendant, or without his consent.

<p>Before Aldrich, J., Charleston, February term, 1910.</p> <p>Indictment against James Davis for larceny from the field. From sentence, defendant appeals.</p> <p>cites: Judgment may be arrested for apparent defects: 1 Bail., 379; 2 N. & M. C., 312, 435; 2 Bay., 215; 1 Brev., 202. Sentence should be in the alternative: Cr. Code, 169; 29 Ency., 325; 58 Fed,, 166.</p> <p>cites: Motion in arrest of judgment made too late: Cr. Code, 57; 56 S. C., 383. Alternative sentence not required: 91 Tenn,, 487; 2 Am. St. R., 310; 82 N. C., 682; 21 Wall., 163.</p>

<p>Before Shipp, J., Union, February term, 1910.</p> <p>Indictment against Russel Tucker for murder. From sentence for manslaughter, defendant 'appeals.</p> <p>cite: 21 Ency., 191: Whar. on Horn., 681, 695; 1 Bishop’s New Cr. L., 314; 1 McClain on Cr. L., 129.</p> <p>cites: 66 S. C., 421; 109 Mo., 345; 87-Ga., 526; 79 Ky„ 461; 94 Ala., 35; 110 Ind., 486; 61 L. R. A., 277.</p>

<p>Before Klugh, J.; Marlboro, October, 1909.</p> <p>Indictment against French Revels for murder. From sentence for manslaughter, defendant appeals.</p> <p>cite: Involuntary manslaughter: 9 Ency., 588. hamful act: 40 S. C., 361.</p>

<p>Before Gary, J., Berkeley, November term', 1909.</p> <p>Indictment against James Edwards for murder. From sentence, defendant appeals.</p> <p>cites: Discretion: 50 N. H., 120; 26 Wend., 152; 10 Wend., 281; Rooke’s Case, 5 Cooke, 100b; 6 Ency., 819-22; 74 Wis., 18; 47 S. C., 488. Continuance: 50 S. C., 403.</p> <p>cites: Continuance: 75 S. C., 152; 80 S. C., 332, 563. Is discretionary with trial Judge: 77 S. C., 240; 33 S. C., 106, 582; 48 S. C., 1; 76 S. C., 135; 78 S. C., 264; 66 S. C., 402; 38 S. C., 333; 82 S. C., 236.</p>

Before Gage, J., Hampton, February, 1910. State of South Carolina against Jesse C. Langford and National Surety Company. From judgment for plaintiff, defendant Langford appeal's. cites: Bond unassignable: 2 McM., 58; 1 Hill, 345; 3 Brev., 10; 18 Cyc., 783. Payment by one joint obligor may be pleaded by the other: 2 Bay., 475 ; 9 Am. Dec., 520 ; 21 Ga., 198. Surety should sue in his own name: 4 Wash., 446; 41 Md., 571; 48 S. C., 588. But not on bond: 2 Bay., 475; 9 Am.

<p>Before Gary, J., Union, May, 1908.</p> <p>Action by C. H. Peake, master for Union county, against John W. Renwick and Cornelia Herndon. From circuit judgment, plaintiff appeals.</p> <p>cite: Compliance after knowledge of the facts is binding: 13 S. C., 203; 41 S. C., 515; 34 S. C., 559. No discount permissible here: 9 Rich., 521; 13 S. C., 203; 41 S. C., 511; 2 Speer., 9.</p> <p>cite: Party may act on information received from one who should know: 2 Pom. Eq. Jur., secs. 895, 888. Defendants could get information from no other source: 22 S. C., 32; 16 Ency., 803; 2 Pom. Eq. Jur., sec. 895, 891; Eaton on Eq., 299, 298; 27 Atl., 894.</p>

<p>1. Charge — Master and Servant — Appliances—Appeal.—Exception assigning error in the use of “and” in the phrase “the burden is on plaintiff to prove the place at which he was put to work was not safe and suitable and that the belt was old, unsafe and defective” in italics where “or” should have been used, held not well taken in trial under complaint alleging as specification of negligence that belt had become defective from long use. Such inadvertences should be called to the attention of the trial Judge if they are to be made ground of appeal.</p> <p>2. Evidence. — Allegations to the effect that a belt was unsafe and defective in that it was old and worn out will not support evidence that it was too tight.</p> <p>3. Charge — Negligence.—Instruction complained of here as to contributory negligence held to have been stated hypothetically and not to be a statement by the Judge of what facts or series of facts would amount to negligence, nor any intimation of his opinion as to the facts.</p> <p>4. Ibid. — Master and Servant — Assumption of Risks. — Instructions here complained of relating to assumption of risks, held when construed with its settings, to mean a servant has the right to assume and rely on the assumption that the machinery and appliances furnished him are safe and suitable, but under that cover he cannot expose himself to an obvious danger.</p> <p>5. Burden of Proof. — Under general denial to a complaint alleging injury from negligence of master, the burden is not on defendant to show the injury was caused by the negligence of a fellow servant or by the sole negligence of plaintiff, but on plaintiff to show injury . was caused by the negligence of the master.</p> <p>6. Jury — Verdict.-—The acts of the Judge, after jury had been out for some time, in insisting on their finding a verdict and giving them again the salient points of the law of the case, held not to tend to coerce a verdict, but to he within the duty of the trial Judge. The length of time a jury should be kept considering a case is within the discretion of the trial Judge.</p>

<p>Before FrnBST Moors, Special Judge, York, January, 1910.</p> <p>Action by Thos D. Arledge, 'Richard F. Arledge and Mary A. Arledge Bums 'against McD. Arledge, J. Patrick Parker and Geo. W. S. Hart.</p> <p>The Circuit decree is:</p> <p>“This is an action to compel' the performance of a contract by the defendant, McD. Arledge, to purchase from the plaintiffs the landis described in the complaint, and! to enjoin the other defendants from clouding the title to the said lands. The plaintiffs aver a title in fee conditional in themselves to the said land's, a contract upon consideration by the defendant, McD. Arledge, to purchase and pay for the same upon receiving a good title in fee to the said lands, a tender by the said plaintiffs of their deed for the said lands accordingly to the said defendant, McD. Arledge, and a refusal by tbe said defendant to accept the same and pay the purchase price. The plaintiffs further allege that the said defendants., J. P. Palmer and G. W. S. Hart, set up a claim of title to said premises, which claim is a cloud upon the title of the plaintiffs thereto. The defendant, McD. Arledge, admits the allegations of the complaint, but the defendants, J. P. Palmer and G. W. S. Hart, aver title in themselves to the said premises and pray the judgment of the Court that the title to the said lands is in them in fee simple. There is substantial agreement as to the ’ facts between all the parties to the action and all parties agreed in open Court to submit their respective rights and titles to the determination of the Court sitting in equity.</p> <p>“All of the parties claiming from a common source of title in J. P. Palmer, the question submitted for determination depends upon the construction of tbe deed by the defendant, J. P. Palmer, to his father, Thomas Palmer, and sister, J. A. Arledge, dated July 30, 1866, conveying the premises here in question. By this deed the premises are conveyed in the granting clause ‘unto the said Thomas Palmer for and during his natural life, and from and after his decease to the said J. A. Arledge, wife of M. D. Arledge, for her sole and separate use during her natural life, and at her death to her issue;’ in the habendum clause, ‘to the said Thomas Palmer for and during bis natural life, and unto the said J. A. Arledge and her issue after his decease;’ and in the general warranty clause, ‘unto the said Thomas Palmer during his natural life and thereafter unto tbe said J. A. Arledge and her issue.’</p> <p>“Both the said Thomas Palmer and the said J. A. Arledge being dead, and tbe plaintiffs being the ‘issue’ of the last named, the said plaintiffs and the defendant, McD. Arledge, contend that, under the terms of this deed, the said J. A. Arledge took a fee conditional' estate in this land, while the defendants, J. P. Palmer and G. W. S. Hart, claim, that the said J. A. Arledge took only a life estate therein, and that there being no issue of the said J. A. Arledge in esse at the time of the execution and' delivery of the deed, no further estate passed thereunder, but that the fee simple in remainder was and is in the defendant, J. P. Palmer, except in so far as he has since conveyed an interest therein to the defendant, G. W. S. Hart.</p> <p>“As to the matter of the proper construction of the deed above mentioned, it appears that the veiy question here presented has been determined by the recent case of Williams v. Gause, 83 S. C., 265, where the Supreme Court of this State, in its latest deliverance upon the point, holds as the correct rule in the construction of a similar deed that- the word ‘issue’ in a deed is to be construed as a word of limitation, except when the language used in the deed shows that it was intended as a word of purchase. In that case the Court held that, where there was a conveyance to one and ‘his lawful issue,’ ‘and their lawful issue forever,’ the grantee took a fee conditional, and that the use of the added words ‘and their lawful issue forever’ did not indicate an intention to give the grantee merely a life estate with remainder to his issue as purchasers. See also Holman v. Wesner, 67 S. C., 308, 45 S. E., 206.</p> <p>“It is urged, however, by defendants, J. P. Palmier and G. W. S. Hart, that such was not the law of this State in 1866, but that the law then was, as laid down in Markley v. Singletary, 11 Rich. Eq., 397, that ‘the word issue in. a deed is always a word of purchase,’ arad that ‘an estate in fee conditional could not he created by deed by use of this word (issue), ‘even when clearly designed as a word of limitation.’ They insist that, especially as the deed here in question was drawn by a lawyer, it must be concluded that the word issue as used therein had the meaning then given to it by the decisions of this State.</p> <p>“But this contention cannot prevail, in the absence of any evidence of the use of the word in the deed here in question in the sense now claimed for it. Notwithstanding the fact that the deed was drawn by a lawyer, presumably familiar with the then existing law of the State, it is evident that it was not drawn with reference to any meaning so fixed for the word ‘issue’ by the case of Markley v. Singletary, supra. For, under the decision in that case, the word ‘issue’ as repeatedly used in this deed could be given no effect whatever, for the reason that if it be construed as a word of purchase, there was no one then in esse to answer the description intended by the term. The oldest child of J. A. Arledge was hot born until January 17, 1867, nearly six months after the date of the deed, and it cannot be supposed that either the draughtsman or the grantor contemplated this unknown and probably unsuspected foetus en ventre sa mere as being the ‘issue’ who alone could take as purchaser under that designation in this deed.</p> <p>“Consequently, it cannot be determined that the deed here was drawn with reference to the effect of the use of the word ‘issue’ as declared by the case of Markley v. Singletary. It must on the contrary be concluded that the word ‘issue’ was used either in ignorance of its legal effect or in the belief that it would be effective as a word of limitation. It is unquestionable that, even under the decisions' as then existing in this State, it could have been made so effective by way of a declaration of trust in the deed, and it must be assumed that the attorney drawing the deed supposed it to be efficacious as a word of limitation, as- it could not apparently have been otherwise intended. By the latest decision of the highest Court of the State, as above quoted, the word is now given the effect which it was probably intended to have both by the grantor and the draughtsman, and, however contrary this decision be to the pre-existing rules of construction, it cannot be doubted but that it effectuates the probable purpose of the grantor in the deed at bar.</p> <p>“We are bound, therefore, by the decision in Williams v. Cause, already cited, to 'hold that the word ‘issue,’ as appearing' in the deed here, is to be taken as a word of limitation, and to construe this deed' as limiting an estate in fee conditional to the said J. A. Arledge in the lands here in question, unless the ‘language of the deed’ itself shows that it was intended as a word of purchase. So resorting to the language of the deed we find nothing to indicate such an intention, but on the contrary, the'-intention evidently was to use the term as a word of limitation.</p> <p>“It must- be concluded, therefore, that the title of the plaintiffs to the lot of land described in the complaint is a good and'valid title in fee conditional, and that the deed of the said plaintiffs will convey a good title in fee simple thereto.”</p> <p>From Circuit decree, defendants, Palmer and Hart, appeal.</p> <p>cite: Alteration in the meaning of issue by judicial decisions: 2 Hill’s Ch., 198; 5 Rich. Eq., 443; 16 S. C., 311; 35 S. C., 330; 40 S. C., 75; 46 S. C., 370; 67 S. C., 308; 83 S. C„ 269; 84 S. C., 355; 82 S. C., 211; 47 S. C., 295; McM. Eq., 457; 3 Strob. Eq., 457; 6 Rich. Eq., 36. Intention in construction of a deed: 46 S. C., 370. The warranty clause: 5 Rich. Eq., 448; 51 S. C., 559; 78 S. C., 191; 36 S. C., 301; 77 S. C., 173; 84 S. C., 427; 78 S. C., 191; 67 Si C., 121.' The granting clause: 40 S. C., 475; 80 Am. Dec., 242; 24 S. C., 235; 10 Rich., 69.</p> <p>cite: Issue is presumed in deed to be word of limitation: 83 S. C., 265; 67 S. C., 307; 76 S. C., 484; 40 S. C., 468; 73 S. C., 469; 35 S. C., 314; 46 S. C., 362; 67 S. C., 133. Intention to use word as one of limitation is manifest: 2 Strob., 158; 35 S. C., 315; 11 Rich. Eq., 398. If issue took as purchasers they took in remainder and in fee: 15 S. C., 277; 46 S. C., 357.</p>

Before Sease, J., Hampton, March, 1910. Action by Wm. Gens against Western Union Telegraph Company. Plaintiff appeals from order granting nonsuit. cites: There was proof of toilful tort: 69 S. C., 327; 69 S. C., 545, 161. Long explained delay raises presumption of negligence: 77 S. C., 408; 69 S. C., 545; 70 S. C., 83, 423; 75 S. C., 97. Admitting evidence to support incompetent allegations not error: 82 S. C., 461.

<p>1. Appeal — Decree.—Remarks of the trial Judge in his decree with reference to appellant’s counsel acting so as to retard the progress of the case have not been shown to have been prejudicial to his rights and not stricken out as that would not alter the effect of the decree.</p> <p>2. Husrand and Wipe — Illegitimate Child — Trust Deed.- — A husband cannot give his whole estate to an illegitimate child against his wife contrary to sections 2368 and 2487 of the Code of 1902 by having deed for land bought by him made to a trustee in trust to be conveyed to whomsoever he may by deed or will appoint and then by will instructing trustee to convey to his illegitimate son with contingent remainder to his brother.</p> <p>3. Depositions — Appeal.—An objection to a deposition that the envelope was not sealed and properly endorsed will not be considered where the record does not show the condition.</p> <p>41. Evidence — Repute—Declarations.—Illegitimacy cannot be shown by repute or the declarations of the mother.</p>

<p>1. Jurisdiction — Corporations.—A magistrate has jurisdiction of an action against a domestic corporation in any county in which it has an agent and transacts its corporate business on a-cause of action for damages to personal property not exceeding $100, and of a foreign corporation in any county in which plaintiff may elect to sue. Method of procuring attendance of witnesses in magistrate court is not a test of jurisdiction.</p> <p>2. Jurisdiction of the person is waived by appearance and contest on the merits.</p>

Before SeasE, J., Bee, September, 1909. Indictment against J. R. C. Boyer for disposing of property under lien. From circuit judgment, defendant appeals. cites: Mortgage gave defendant right to sell: 6 Cyc., 1041, 1044; 14 S. C., 112; 33 S-. C., 475; 18 S. C., 157; 75 S. C„ 207. Removal must he without the State: 36 S. C., 497; 43 S. C., 200; 74 S. C., 450; 57 S. C., 264. cites: Defendant guilty: 36 S. C.. 497.

<p>Before Ernest Moors, Special Judge, Lancaster, October, 1909.</p> <p>Action by John A. Bridges against Southern Railway. From judgment for defendant, plaintiff appeals.</p> <p>cites: 69 S. C., 502, 378; 61 S. C., 236; 62 S. C., 56; 63 S. C., 378; 21 S. C., 420.</p> <p>cite: 59 S. C., 371; 61 S. C„ 236; 69 S. C., 481; 11 Rick, 91; 15 S. C„ 481; 15 Cyc., 795-6; 13 Am. R., 681; 38 S. E., 81; 28 S. C., 388; 62 S. C., 516; 10 Ency., 1144, 1189; 108 Mass., 208; 13 S. W., 128.</p>

Before Gage, J., Berkeley, March, 1910. Indictment against Thos. M. Murphy for shooting a hog. Defendant appeals from sentence below. cites: When Judge may set aside verdict: 1 S. C., 1; 77 S. C., 328; 61 S. C., 490; 69 S. C., 101; 52 S. C„ 371; 64 S. C., 566; 73 S. C., 340. No Malice: 15 S. C., 409 ; 14 Rich., 247; 62 S. C., 252; 19 Ency., 641. cites: Not necessary to show malice toward owner: 15 S. C., 413; 62 S. C., 270; 64 S. C., 558.

<p>Before Klugh, J., Richland, May, 1910.</p> <p>Action by B. F. Tindall against Columbia Mills Co. From judgment for plaintiff, defendant appeals.</p> <p>cite: Assumption of risks: 21 S. C., 547; 20 At. R., 552; 4 Id., 181; 55 S. C., 488; 69 S. C., 109; 72 S. C., 348, 242; 80 S. C., 238; 1 At. R., 575; 211 U. S., 459.</p> <p>cites: Bvidence of plaintiff’s claim is for jury: 21 S. C., 101; 55 S. C., 180. Duty of Master: 72 S. C., 269. Assumption of risks: 72 S. C., 402; 71 S. C., 80; 64 S. C., 214; 51 S. C., 234; 18 S C., 281.</p>

<p>1. Municipal Courts — Warrant—Arrests.-—W|here there is nothing in the record in an indictment in a mayor’s court for selling liquor to show the offense was committed in presence of the officer or under such circumstances of emergency as would justify an arrest without a warrant, accused may demand a warrant before trial.</p> <p>2. Witnesses — Jury—Appeal.—Where a defendant in a mayor’s court waives the requirement that the witnesses sign their testimony and does not demand a jury until trial begun, he should not urge these points as errors.</p>

Before Krugh, J., Richland, Summer term, 1909. Action by James H. Diseker, Jr., against Eau Claire Land and Improvement Company. From order of non-suit, plaintiff appeals. cite: What covenant of warranty embraces: 8 Ency., 100; 2 N. & M., 186, 189; 1 McC., 500; 12 S. C., 62. When covenant against encumbrances is, broken: 8 Ency., 117, 123; 27 S. C., 193; 3 McC., 449; 1 Ency., 117; 8 Ency., 1272.

<p>Before DeVorE, J., Spartanburg, November Term, 1909.</p> <p>Action by R. H. Lewis and John Parish against N. B. Pope, D. M. Laughter et al. From judgment for defendants, plaintiffs appeal on the following exceptions:</p> <p>1. “Because his Honor, as it is respectfully submitted, erred in. refusing to charge the plaintiffs’ sixth request, to wit: ‘A person cannot live on or occupy one tract of land and establish adverse possession under color of title over an adjoining tract of land by proving that he has cut wood or timber on such adjoining tract and hauled it off for use on the tract on which he lived.’ The error being, as it is respectfully submitted, that this request was a sound proposition of law applicable to the testimony introduced. There being testimony tending to show that the ancestor of the defendants through whom they claimed lived on another tract of land, separate and distinct from the tract in dispute, and that his acts of ownership, or of adverse possession, were going on the land' in dispute at separate and distinct times and cutting wood and timber on the same, not for use on the tract in dispute, but for use on the separate and distinct tract, and that by refusing this request his Honor refused to submit to the jury one of .the questions of fact in this case, to wit: whether or not the acts of defendants’ ancestors in going on the land in dispute and cutting wood and timber was sufficient to establish a title by adverse possession to the same.</p> <p>2. “Because his Honor erred in refusing to charge'plaintiffs’ thirteenth request, to wit: ‘When a person claims that he has acquired title to land by being in possession for twenty years, he must prove such possession of such land for twenty consecutive years. The mere going on the land while living on another tract, and cultivating a part of such land for a few years, or occasionally cutting wood on it, is not such possession from which it can be presumed that he had a deed. In all cases the jury must find the truth from the evidence, and if, as a matter of fact, he had no deed, then they cannot presume that he had such deed.’ The.error being, as it is respectfully submitted, that this was a sound proposition of law applicable to the testimony in this case, and as a matter of law, under the facts the plaintiffs were entitled to have the jury so instructed. By'refusing this request his Honor took from the jury, or rather failed to submit to the jury, one of the material issues in the case. It being respectfully submitted that where one is living on one tract, the mere going upon another tract, to which he has no paper title, and cultivating a part of it for a few years, or occasionally cutting wood on the same, is not such possession as, under the law, would presume a deed, and it was error on the part of his Honor to fail to so instruct the jury when requested. It is further respectfully submitted that his Honor should have instructed the jury, as requested, that if the evidence shows, as matter of fact, that one has no deed, then the mere fact that one has been in possession of land for twenty years is not sufficient to presume a deed against evidence showing the contrary, and his Honor erred in refusing to so instruct the jury when requested to do so.</p> <p>3. “Because his Honor erred in refusing to charge all of the eighth request of the plaintiffs, to wit: ‘Where one establishes a legal title to land, the law presumes that he has been in possession of the same within the time fixed by the statute, and such title cannot be defeated by an occupant of such land unless he proves adverse possession in one or the other of the ways which have been explained to you, and even though it does appear that the occupant has been in possession of the same for twenty years, this will not presume a deed from the owner of such land, but before such occupant can defeat the legal title he must establish his adverse possession either under color of title or by actual possession for ten consecutive years.’ It being respectfully submitted that this request embodied a sound proposition of law applicable to the testimony in this case, and his Honor, as it is respectfully submitted, erred in not charging the entire request. It is further respectfully submitted that his Honor erred in modifying this request by refusing to charge a part of it; the law being that where one establishes a legal title the presumption is that such person has been in possession within the time fixed by the statute, and that when the legal title has been proven in any one then that the mere proof of occupancy of such land by another is presumed to be in subordination to the legal title, and his Honor, by modifying this request, failed to properly instruct the jury on this phase of the case.</p> <p>4. “Because his Honor erred in refusing to charge plaintiffs’ eleventh request, to wit: 'While the 'declarations of a person who has been in possession of land may be given in evidence to show under what right he held it, yet, I charge you that the loose declarations of a man in possession cannot prevail against the truth of the case as may be ascertained and proved on the trial of such case.’ The error being, as it is respectfully submitted, that the evidence showing that neither the defendants, nor those through whom they claimed, had any deed to this land, and as there was evidence of declarations of the ancestor of the^ defendants, as to how he held this land, and the plaintiffs having proven- title to the same, they were as matter of law, entitled to have the jury instructed as requested, and that his- Honor, by refusing this request, permitted the jury to find that the declarations of the ancestor of the defendants was sufficient to vest title in themselves against evidence which otherwise might have been sufficient to have convinced the jury that the- defendants were wrongfully in possession oí the land, and had no title to the same.</p> <p>5. “Because his Honor erred in charging the fourth request of the defendants, to wit: ‘The law presumes possession- unexplained to be adverse possession. Holding exclusively and adversely and open-ly are the highest acts in the power of the disseizer to indicate his intention. Those who claim an interest in- things must be charged with a knowledge of their status and condition.’ The errors being, as it is respectfully submitted: (a) Because under the law where one has proven a perfect title to land, the law presumes that such person- has been in possession of the land within the time fixed by the statute, and that any person on such land is there in subordination to the true title, and that his Honor, in charging that the law presumes unexplained possession to be adverse possession, reversed the rule and placed upon the holder of the true or legal title the burden of showing that the possession was not adverse; whereas, it is respectfully submitted, that the burden is upon the one setting up the adverse possession of proving to the satisfaction of the jury the title under suc-h claim, (b) Because, by this charge, his Honor charged upon the facts of the case and instructed the jury as matter of fact that where a person claims an- interest in anything, he is charged with a knowledge of its status and condition. Whereas, it is respectfully submitted, that it was for the jury to say, under the testimony in this case, whether or not plaintiffs, or any- of those through whom they claimed, did have knowledge of the fact that the defendants were claiming this land adversely.”</p> <p>cite: Adverse possession: 6 Rich., 67; 1 McM., 354; Code of Proc., 101; 2 Rich., 629; 2 N. & McC., 343, 534; 8 Rich., 42; 10 Rich., 433; 1 Strob., 145. Twenty years’ possession must be consecutive: Dud., 177; 2 Rich., 629; 1 McC., 354.</p> <p>cite: Presumptions: 80 S. C., 110. Declarations of one in possession: 48 S. C., 485; 53 S. C., 31. Adverse holding: 48 S. C., 293.</p>

<p>Before Prince, J., Richland, Spring term, 1910.</p> <p>Indictment against H. Van Burén for practicing medicine without a license. Prom order discharging defendant on plea of former jeopardy, State appeals.</p> <p>cite: 20 S. C., 406; 3 Rich. R„ 174; 13 S. C., 392; 32 S. C., 94; 59 S. C., 274; 76 S. C., 16.</p> <p>cites: 76 S. C., 74; 1 Rich., 172; 10 Rich., 148; 13 S. C., 392; 48 S. C., 384; 8 Rich., 312; 47 S. C., 166; 54 S. C., 237; 163 U. S., 661; 93 U. S., 18; 144 U. S., 310; Dud, 42; 2 McM., 395; 65 S. C., 190; 108 Ga., 776.</p>

Before DLVorr, J., Cherokee, Fall term, 1909. Action' by Sallie L. Whisonant, administratrix, against Atlanta & Charlotte Air Line Railway Company. From judgment for plaintiff, defendant appeals. cite: Duty of master in furnishing safe place zvhere servant engaged in making repairs: 26 Oye., 1329, 1260; 77 S. C., 426; 78 S. C., 479.

<p>1. Written Instrument. — Secondary evidence of the contents of a lost letter to prove the written memoranda of a sale held competent here because: (1) admitted without objection; (2) when plaintiff offered a cop'y defendant merely interposed a general objection; (3) there was other testimony sustaining the allegations of the complaint not objected to; (4.) defendant admitted the contract in his answer.</p> <p>2. Statute of Frauds. — A contract for sale of a machine to be delivered in futuro, need not be in writing when there is work and labor to be performed on the machine to such an. extent as to cause the labor and work to enter considerably into the cost and price of the machine.</p>

Before Gage, J., Marlboro, April, 1909. Action by C. B. Crosland Co. against Rachel E. Pearson. From judgment for plaintiff, defendant appeals. cite: Proof of entries in merchant’s book: Green, sec. 115 ; McKelvey, sec. 164; 17 Cyc., 368, 370; 45 Strob., 58; 1 N. & McC., 186; 1 Brev., 105; 1 Bay, 473, 38; 2 McM., 133.

Before Aldrich, J., Greenville, September term, 1909. Indictment against Young Springfield for murder of Thomas Springfield.

Before Wilson, J., Lexington, December term, 1909. Action by Lucretia Rafield, by guardian, against Atlantic Coast Line R. R. Co. and Columbia Electric Street Railway, Light and Power Co. From -order refusing to dismiss complaint, defendants appeal. cite: Neither defendant is a resident of Lexington county: 47 S. C., 387; 65 S. C., 326; 24 L. R. A., 693 ; 37 L. R. A., 33; 24 L. R. A., 696; 212 U. S., 215; 129 Pa.

<p>Wills — Issue—Limitation of Estates.- — -In the will here in question the word “issue” is used as a word of purchase, and the children of testator’s son, who predeceased the testator, in esse at death of testator, take in exclusion of the son’s grandchildren born after death of testator.</p>

<p>Before W. H. Hunt, Special Judge, Spartanburg.</p> <p>cite: Bunds of infants arising from partition sales is realty: 3 Pom., sec. 1167; 15 Eney., 260; 1 Tiffany, 260; 58 N. C., 271; 56 N. C., 35; 53 N. C., 336; 45 N. C., 1; 41 N. C., 524; 22 N. C., 144; 2 Rich. Eq., 56; 21 S. C., 375; 64 S. C., 101; 9 Cyc., 846. Conversion: 19 Ves., 118; 51 S. C., 271.</p> <p>cite: Land was converted into personalty: 64 S. C., 101; 21 S. C., 375. Case governed by laws of North Carolina: 13 N. C., 73; 96 N. C., 139. Under these laws the husband inherits all: 126 N. C., 465; 123 N. C., 219; 116 N. C., 684.</p>

Before Memmingbr, J., Darlington, March, 1910. Petition by J. T. Mclnvaille for writ of mandamus against C. R. Rouse. From order refusing the writ, relator appeals. cite: Mandamus lies to compel a magistrate to act: 89 Am. Dec., 739 ; 98 Am. St. R., 905; 50 S. C., 558; 71 S. C., 236. Does the act 24 Stat., 428, require issuance of second warrant? 80 S. C., 131. This act not repealed by act 1908, 1O81: 8 S. C., 127; 4 L. R. A., 309; 26 Ency., 720.

Before W. B. Gruber, Special Judge, Barnwell, October, 1909. Proceeding to foreclose mechanic’s lien by A. B. Metz against W. E. Critcher and W. B. Oswald. From judgment for defendants, plaintiff appeals. cites: Disagreement as to contract carries issue to jury: 31 Cyc., 1672; 2 Mill., 251; 27 Cyc., 407; 29 Ore., 153. Directing verdict: 84 S. C., 299. cite: Personal judgment not recoverable here: 67 S. C., 11.

<p>Before DanTzeEr, J., Charleston, January, 1910.</p> <p>Action by James M. S. Herbert against C. W. Parham. From judgment for plaintiff, defendant appeals.</p> <p>cite: Acts of negligence alleged must be proved: 66 S. C., 256; 57 S. C., 433; 45 S. C., 278; 39 S. C„ 43; 33 S. C„ 198; 55 S. C., 483, 25 S. E., 545. N.o recovery ivhen negligence alleged is a surmise: cases cited above and 179 U. S., 658; 200 U. S., 480; 176 Fed., 69; 41 E. R. A., 478; 18 Eng. Rui. Cas., 75. Accident does not create presumption of mgligence: 72 S. C., 398; 69 S. C., 529; 66 S. C„ 256; 39 S. C., 39; 82 S. C., 345; 75 S. C., 102; 59 Fed., 479; 166 U. S., 617; 140 Pa., 448; 18 R. R. A. (N. S.), 701. Hiring a minor servant to perform duties involving danger is not negligence: 93 Wis., 417; -1 R. on M. & S., sec. 18; 21 N. E., 717; 41 E. R. A., 33; 125 N. Y., 737; 16 Aid., 737; 26 At. 374; 76 S. C., 452; 69 S. C., 529; 26 Cyc., 1092. Defendant only required to show he used due care: 4 Wig. on Ev„ sec. 2493-4; 39 R. R. A., 842; 52 R. R. A., 933; 57 S. E., 751. Master only required to furnish safe appliances: 75 S. C., 303; 34 S. C., 211; 65 S. C., 192. Tests by master: 65 S. C., 192; 65 Fed., 482; 40 N. E., 173; 30 N. E., 750; 127 Fed., 92. Inspection: 26 Cyc., 1139; 12 So., 574; 20 Am. R., 331; 76 N. Y., 125. Liability rests on legal knowledge: 83 S. C., 342; 35 S. C., 405; 15 S. C., 443; 26 Cyc., 1142, 1168, 1144; 161 Mass., 153; 51 R. R. A., 881. Duty to warn: 81 S. C., 1; 52 S. C., 323; 65 S. C., 192. Liability: 13 R. R. A., 668; 1 R. R. A. (N. S.), 298; 68 R. R. A., 342; 15 R. R. A., 821, 818; 41 R. R. A., 3; 16 R. R. A., 214, 527; 6 R. R. A. (N. S.), 337; 13 R. R. A., 668.</p> <p>cite: Duty to zvarn: 85 S. C., 93; 102 Mass,, 573; 101 N. W., 828; 11 Q. B. D., 503. Res ipsa loquitur: 2 Jagg, on Torts, 938; Thomp. on Neg., 939; 11 Fed. R., 438; 57 N. Y, 567.</p>

<p>1. Real Property. — In an action on a complaint alleging title and possession of land in plaintiff and trespass by defendant, plaintiff has only to prove possession not acquired by disseizen of defendant to entitle him to hold the land and recover of defendant damages for the trespass, unless defendant prove title in himself or license from one proved to be the true owner.</p> <p>Geiger v. Kaigler, 15 S. C., 262; Heyward v. Farmers Co., 42 S. C., 138; Banlc v. Peterkin, 52 S. C., 236, and Love v. Turner, 71 S. C., 322, distinguished from this case.</p> <p>2. Ibid. — Issues.—Where a defendant shows a chain of title back to 1867, but does not connect himself with a grant from the State, it is error for the Court to instruct the jury that he has shown perfect title to the land, since the jury should determine if there has been such possession as will presume a grant from the State.</p> <p>3. Ibid. — Ibid.—Where a plaintiff relies on a written chain of title on the presumption of a grant and adverse possession, it is error for Court to instruct jury that he cannot recover, unless his written chain of title covers the land described in the complaint.</p> <p>4. Ibid. — Evidence.—Ti-ie declarations of a former owner, through whom defendant claims, while owner, as to the lines and trespasses, are competent, on behalf of plaintiff.</p>

Before Ardrich, J., Charleston, February term, 1910. Indictment against James Dalby for assault with intent to ravish. From sentencé, defendant appeals. cites: Act unconstitutional: 57 S. C., 247; 59 S. C., 53; 28 Eney., 578-9.

<p>1. Attorneys. — Permitting solicitor in argument to say there had been four homicides committed in the vicinity of the one now being tried is error, but it is held not prejudicial here as the record shows no other verdict could have been found from any reasonable view of the evidence, and counsel for defendant first injected extraneous matter into the argument, and the solicitor told the jury these other homicides had nothing to do with this case.</p> <p>3. Self-Defense — Issues.—Whether the language used by defendant to deceased was such as would reasonably provoke a physical encounter is for the jury, and not for defendant.</p> <p>3. Charge. — Hypothetical statement of fact, followed by a statement of the legal result is not a charge on the facts.</p> <p>4. Ibid. — In explaining the diiferenee between murder and manslaughter, the statement, “now, what spirit of the breast did Duncan kill Brooks' out of?” when considered with the whole charge and the explanation then being made, is not a statement of a fact denied in the case.</p> <p>5. Evidence — Chabge.—Exclusion of the cause of the separation of defendant and his wife, and saying “it is bad enough to know that she quit him,” is not error, and the remark cannot be construed as a reflection by the Judge on the character of the witness for veracity or otherwise.</p>

<p>1. Evidence — Railroad Crossings. — Admission of opinions of witnesses as to danger of a railroad crossing was harmless here both as to statutory cause of action and that at common law.</p> <p>2. Railroads — Crossing Signals. — The portion of the charge here complained of as instructing the jury the defendant was liable if its failure to give the statutory crossing signals contributed to the injury, held, when construed with other portions of the charge, not to be harmful, but to mean there could be no recovery unless such acts were a direct and proximate cause of the injury.</p> <p>3. Charge — Railroad Crossing. — The instruction here complained of in reference to the purpose of giving the statutory signals on approaching a crossing, especially where “as it is alleged in this case it cannot be seen on account of a curve or other obstruction,” held not to be a statement of a material fact in the case, but to have been used by way of illustration.</p> <p>4. Ibid. — Ibid.—Look and Listen. — Instructions requested as to result of failure of a traveler to stop, look and listen, and to take precautions to protect himself from a train he knows or could have known was approaching, although the statutory signals were not given, held properly refused as they would have intimated to the jury the inference to be drawn from the facts therein stated in detail.</p> <p>5. Ibid. — Gross Negligence. — Refusal of requests defining gross negligence as want of slight care, and effect of want of slight care in ascertaining- if a train is approaching a crossing, held not error, because substantially covered in other requests.</p> <p>6. Ibid. — Damages.—Request to instruct jury that parent cannot recover for death of child living apart from him and not contributing to his support, is on the facts and covered in previous instruction. Trvmmier v. Ry., 81 S. C., 213, affirmed.</p> <p>7. Damages. — Age of the parent is not an element to be considered by the jury in estimating the damages to the parent from the death of the child.</p> <p>8. Exceptions not argued are not considered.</p>

Before Ernest Moore, Special Judge, York, November, 1909. Action by Kate J. Hutchison against York County, its supervisor and county board of commissioners.

<p>Real Property — Sale and Reinvestment — Jurisdiction.—The Court of Common Pleas has power to order a sale of specific property held under trust or direct limitation vested or contingent and a reinvestment of the proceeds of sale. This power should be exercised with great caution after careful investigation, which was done in this case.</p>

Before Wilson, J., Greenville, March term, 1910. Action by Moore Murphy against Atlanta & Charlotte Air Line Railway Company. From order of nonsuit, plaintiff appeals. cite: Was there evidence of negligence? 66 S. C., 258; 69 S. C, 529; 72 S. C., 389; 86 S. C,, 137. Bvidence supported every allegation: 67 S. C., 122; 66 S. C, 91; 75 S. C., 71.

<p>Petition in the original jurisdiction of this Court by R. P. Stackhouse and others, composing- the courthouse commission of the County of Dillon, for mandamus against the County Board of Commissioners of Dillon County.</p> <p>cite: As to construction of statutes: Vattell, sec. 285; 33 S. C., 164; 16 S. C., 425. Instructions in act as to notice, time, place, etc., only directory: 15 Cyc., 362; 10 Ency., 588; Potters Dwarris on Stat, 222; 20 S. C., 361; 15 Cyc., 311, 322; 10 Ency., 626, 670 ; 90' A. S, R., 43; 120 A. S. R., 794; 61 111., 99; 102 Cal., 184; 63 111., 374; 22 S. R., 558; 104 111., 339; 23 Ky. R., 1356; 90 Am. St. R., 50; 1 McM., 336; 79 S. C., 248; 76 S. €., 461; 78 S. C., 461; Chev.', 369. All acts relating to same subject must be construed together: Potters Dwarris on Stat., 189; 26 Ency., 620, 623; 11 Wheat., 385; 20 John., 744; 9 Barb., 161; 1 Kent, 463; 28 S. C., 528; 3 T. R.„ 594.</p> <p>cites: Blection must be held at place fixed by law: 15 Cyc., 343. Right to hold must be conferred by law: 15 Cyc., 317; State v. Sims, 18 S- C. Notice must be given by officer designated: 15 Cyc., 322.</p>

Before Gary, J., Calhoun, November, 1909. Indictment against John Ayers for murder of Malley Whitmore. From .sentence on verdict, defendant appeals. cite: Judge should not state isolated fact: 70 S. C., 79; 4-4 S. E., 694; 13 Am. St. R., 515; 40 Id., 832; 73 S. C., 356; 68 S. C., 317. Clot on brain not admitted: 68 S. C., 162; 76 S. C., 506, 257. cites: Proof of corpus delicti: Best on Ev., sec, 442; 43 Miss., 472; 109 N. Y., 113. Paw of self-defense: 43 S. C., 128; 80 S-.

Before Gage, J., Marlboro, April term, 1909. Action by C. D. Napier against A. J. Matheson.

Before Shipp, J., Anderson, February, 1909. Action' by C. W. Dixon against Chiquola Manufacturing Co. From order of nonsuit, plaintiff appeals. cite: Assumption of risks, not pleaded, cannot be relied on by defendant: 73 S. C., 503. Servant is not bound to know of latent defect: 72 S-. C., 411. What is scope of employment here? 26 Cyc., 1090. Rule not used becomes abrogated: 42 S. F., 913; 139 N. C., 528; 68 S. C., 55.

<p>Before Wilson, J., Greenville, January, 1910.</p> <p>Action by City of Greenville against A. F. Pridmore. Defendant appeals from 'Circuit order sustaining judgment of mayor’s court.</p> <p>cites: The constitutional provision applies to city governments: 14 S. C., 290; 19 S. C., 421; 11 S'. C., 292; 1 Dill Mun. Corp, sea 308. An amendment of a void ordinance is void: 13 S. C., 546; 1 Dill Mun. Corp., sec. 89; 23 S. C., 523; 30 S. C„ 93; 28 Cyc., 382; 28 Cyc., 374.</p> <p>cite: Mayor may act as Jtidge on ordinance made by his council: 85 S. C., 227. Ordinance may be valid in part only: 21 Ency., 993; McQuiller on Mun. Or., sec. 295; 10 Current L,., 894; 76 S. C., 44; 82 Pac., 526; 47 N. W., 208; 21 N. W., 856; 30 S. C., 93.</p>

<p>Before DeVore, J., Richland, June, 1910.</p> <p>Action by George R. Rembert against W. Boyd Evans. From Circuit decree, defendant appeals.</p> <p>cites: As to construction of heirs of the body: 24 S. C., 314; 67 S'. C., 308; 65 S'. C., 354; 1 Rich. Eq., 404; 52 -S. C., 554; 1 Stro-b. Eq., 404; 48 S. C., 440; 3 Rich. Eq., 559; 16 S. C., 290; 2 Strob. Eq., 190.</p> <p>cite: Fee was in trustee: Lewinon- Trusts, 249-51; 29 S. C., 136; 31 S. C., 13. The wives of trustees did not take a fee conditional: 6 Rich. Eq., 9; 1 Curtis, 428; 30 S. C., 144; 30 S. C., 130; 42 S. C„ 342; 65 S. C., 345. Revert not used here in technical sense: 2 Wash. R. Prop., secs. 1509-15; 38 S. C., 73; 65 S. C., 393. The last takers held a contingent remainder in fee: 9 Rich. Eq., 303; 31 S. C., 14; 15 S. C., 277. This interest may be conveyed: 2 Wash. R. P., 1509 et seq. Contract to convey must be performed by devisee: 5 Rich. Eq., 370'; Code 1902, 2609-11; Bail. Eq., 228; 4 Rich. Eq., 425; 17 S. C., 441, 549.</p> <p>cites: “Heirs born of her body” mean children: 67 S. C., 133; 3 Rich. Eq., 158; 23 S. C., 238; 4 DeS.^Eq., 439; 25 S. C., 289; 36 S. C., 38; 42 S. C„ 342; 71 S. C., 279; 42 S. C., 346; 3 Strob. Eq., 66. Rule in Shelley’s case does not apply: 8 Rich. Eq., 11; 39 S'. C., 144.</p>

<p>Writ of certiorari from this Court to the State Board of Canvassers upon the petition of W. A. Davis and W. M. Craig.</p>

Before SeasE, J., Williamsburg, November term, 1909. Action by W. H. Carr against S. R. Mouzon, Sr., D. K. Mouzon et al. From judgment for defendants, plaintiff appeals.' That part of the charge complained of in the first exception is: “I charge you that when a deed is on record, and put on record, it stands as notice to the world, to whoever takes subsequent deed or conveyance or a mortgage or any other nature of conveyance, takes it at his own risk, whether or not he…

<p>1. Appeal — Wills.—On appeal from decree of Circuit Court on appeal from judgment of probate court in proof of will in solemn form, findings of fact by the Circuit Court are not reviewable here.</p> <p>3. Wills — Burden of Proof. — When the formal execution of a will is proved, a prima facie case is made out and burden is then on contestants to show invalidity.</p> <p>3. Ibid.- — Parties.—Any person interested in invalidating a will is a proper party to the proof of the will in solemn form in the probate court.</p> <p>4. Ibid. — Appeal.—The Circuit Court on appeal from probate court in proof of will in solemn form may hear appeal first, determine the legal issues and remand case to probate court for new trial without submitting to the jury in that court the issue of will or no. will.</p> <p>5. Ibid. — Evidence.—A declaration of trust made by an executor, the sole beneficiary of the will should be admitted in probate court in proof of will in solemn form.</p> <p>6. Ibid. — Witnesses to a will should give attention to testator’s sanity at time of execution, but failure on their part to testify as to sanity will not invalidate the will.</p> <p>7. Wills.- — Contestant of a will may rely solely on the evidence of the subscribing witnesses to show invalidity.</p> <p>8. Ibid. — Res Judicata. — Where Circuit Judge does not undertake to pass final judgment on the facts on appeal from probate court in contesting a will his remarks as to sufficiency of evidence are not res judicata.</p> <p>9. Rehearing refused.</p>

Before Kdugh, J., Clarendon,' February term, 1910. Held: and to the prejudice of the '¿Defendant, H. A. Kennedy ; and there being error further in this charge, because it appeared affirmatively that W. W. Kennedy did not enter into possession of the premises in question, under claim of title, exclusive of any other right, founding such claim upon a written instrument, to wit: “Of either…

Before DeVorB, J., Pickens, October term, 1908. Action by J. B. Tucker against R. G. Gaines. From judgment for defendant, plaintiff appeals. cite: Pcm'oI evidence to show the contract between defendant and Brozunlee was improperly admitted: 79 S. C., 63; 71 S. C., 153; 77 S. C., 464; 53 S. C„ 154; 45 S. C., 184; Savage v. Kinloch, 1 Speer. Eq.; 3 Brev., 17; 3 Bail., 56; 3 McC., 159, 163; 1 McC., '486. Judge should have construed the letter: 81 S. C., 336.

<p>1. Evidence — Conversation.—In prosecution for murder of a dispensary constable while making an arrest, conversation between a witness and defendant as to deceased searching his house sometime before the homicide is competent as tending to show defendant knew deceased was a constable.</p> <p>2. Constables. — Section 1047, Code 1902, providing that constables shall file a hond with the clerk of the court and take certain oaths, does not apply to constables appointed by the governor under the dispensary act of 1907.</p> <p>3. Ibid. — Homicide.-—-But if the law required a dispensary constable to give a bond and file an oath and he had not done so, but was exercising the duties of such office under a commission from the governor, one killing him in discharging the duties of the office would be only entitled to such defenses as he could interpose to the killing of an officer de jure.</p> <p>4. Evidence. — There being no issue as to the date of the homicide and defendant having stated it, it was not prejudicial to refuse to let him restate it, as Judge was not advised as to the purpose of repeating it except to show a special term of Court had been called to try this case.</p> <p>5. Contradiction.- — A witness may be contradicted by a bystander as to a statement made by him to another.</p> <p>6. Interstate Commerce — LiauoRS.—An interstate shipment of alcohol in unbroken package is delivered, so as to be subject to State laws, when put in possession of the consignee by the carrier at its station.</p>

<p>1. Carrier — Evidence.—Where a plaintiff testifies a certain party is the agent of carrier at a particular station and the party so testifies, there is not room to doubt he is the agent.</p> <p>2. Ibid. — Freight—-Penalty—Waiver.-—Request by agent at destination of freight to send claim for shortage to general claim agent, letter from claim, agent acknowledging the claim and promising adjustment, do not show waiver on part of carrier of statutory requirements on which penalty attaches. Such claim should be in writing or printing.</p> <p>Goldstein v. Ry., 80 S. C., 523, explained.</p>

<p>1. Carrier and Passenger. — Evidence as to injuries from a carriage in cold weather in a storm is admissible in an action for selling a passenger a wrong ticket and putting him, off at a station without fire and comforts as tending to show the journey was necessary and injury to plaintiff.</p> <p>2. Ibid. — Evidence that ticket agent was stationed where he could have seen the passenger board the wrong train is admissible, but here it could hardly have had any weight with the jury as his uncontradicted evidence was that he was hard pressed and absorbed in- his work.</p> <p>3. Contradiction. — Irrelevant or immaterial evidence is not the subject of contradiction.</p> <p>4. Carrier and Passenger — Ticket.—That a passenger asks the agent of carrier for a ticket to a point by a particular route and the agent states the price and delivers the ticket is evidence of a contract of carriage over that route.</p> <p>5. Ibid. — Issues.—There being evidence here tending to show the passenger was put off at a station on a cold day with no fire in the waiting room, without money to procure accommodations, inexperienced and comparatively helpless, it was proper to send to the jury the issue whether it was the duty of the passenger to remain at the station for nearly a day for the next train or to drive in a carriage on a cold stormy day to a place of comfort.</p> <p>6. Ibid.- — Ibid.'—Negligence.—It is not a want of due diligence under all circumstances in a passenger to fail to inspect his ticket to ascertain the route there indicated, as an unsigned ticket is not the sole evidence of the contract of carriage.</p> <p>7. Ibid.- — Conductor.—Knowledge by the ticket agent of the rights of a passenger is imputed to the conductor, and it is his duty to carry out the contract made with the agent.</p>

<p>Before C. C. EeathBrstonB, 'Special J., Abbeville, April, 1909.</p> <p>Action- by H. Q. Talbert against A. B. Hamlin. From judgment for defendant, plaintiff appeals.</p> <p>cite: Liability of defendant to account is a preliminary question: 30 Cyc., 738 ; 1 Cyc., 444. Defendant should be required to file account: 19 S. C., 560; 2 Strob. Eq., 31; 7 Rich. Eq., 377.</p> <p>cites: Presumption is in favor of concurrent finding by master and Court: 83 S. C., 190; 55 S. C., 198'; 56 S. C., 168; 70 S. C., 552; 57 S. C„ 405.</p>

Before Gage, J., Barnwell, December, 1909. Action by Drank Bing against Atlantic Coast Dine Railroad Co. From judgment for plaintiff, defendant appeals. cite: As to declarations of servants after act: 39 S. C., 441; 28 S. C., 157; 27 S. C, 63; 72 S. C., 256; 1 Ell.'on Ev., 378; 1 Green. Ev., sec. 113; 19 S. C, 373; 27 S. C, 67; 53 S. C., 451; 56 S. C., 145; 67 S. C., 362.

Before Watts, J., Marion, November, 1909. Action by Bank of Marion against Southern Express Co. From judgment for plaintiff, defendant appeals. cite: Carrier is not liable zvhere it shows impossibility of loss on its line: 101 Am. St. R., 398; 94 Am, St. R., 656; 30 Am. St. R.„ 577; 4 Ell, on R. R„ sec. 1450; 3 Hutch, uni Car., sec. 1347. The opinion in this case -was filed July 18, 1910, but held up on petition for rehearing until

<p>1. Railroads — Master and Servant. — There being evidence here tending to show that the master ordered the servant to ride on a dump car on a load of cross-ties, so loaded as it could not be slowed down by the usual method, and not furnished with an appliance for controlling the speed, the Court could not say the only inference from the evidence was that the injury to the servant caused by the cross-ties falling from a jar was caused alone by his negligence or his contributory negligence, or was a mere accident.</p> <p>2. Ibid. — Ibid.—Charge.—The carrier cannot complain that the Court in the absence of evidence of a rule instructed the jury that if there was a rule forbidding the servant to ride on a dummy car, it was for them to say if it had been abrogated or waived as the assumption of evidence of such a rule was favorable to the carrier.</p> <p>3. Rehearing refused.</p>

<p>Before C. C. FeathUrstonE;, Special Judge, Greenville, June, 190’9.</p> <p>Action by John G. Wyatt against Alice M. Cely. From order of injunction, defendant appeals.</p> <p>cites: Plaintiff must show damages peculiar to him: 48 S. C., 560'; 1 Hill, 365; 30 S. C., 545; 46 S>. C., 328. User must he adverse: 1 Chev., 1; 32 S. E., 424; 6 Rich., 401; 1 Bail., 58, 341; 41 S. C., 20; 53 S. C., 514; 63 $. C., 454; 76 S. C., 387. Framing verdict: 63 S. C., 466; 70S. C., 216.</p> <p>Oral argument.</p>

Before Prince, J., March, 1907, and Mrmminger, J., October, 1909, Richland. Action by the County of Richland against Samuel H. Owens and American Surety Company of New York. From circuit orders, defendants appeal. cites : Plaintiff must allege specific breaches: 68 S. C., 204; 31 S. C., 605; 51 S, C., 436. Public officers are not liable for loss resulting from exercise of their judgment or discretion: 10 Rich. Eq., 518; 2‘N. & McC., 168; 23 Ency., 375; 29 Cyc., 1442-3.

<p>Before Prince;, J., Charleston, December, 1908.</p> <p>Judge Prince’s Order.</p> <p>This case coming- to trial on the regular call of the docket of the Circuit Court of Common Pleas for Charleston county, on the day of 1908, and the defendant, by its counsel first pressing for a hearing, a motion praying this Court to accept the petition and bond duly filed, and that this Court effect by its order the removal of -the case for trial to the United States Circuit Court for the District of South Carolina, after hearing argument pro and con I refuse the motion; and the case coming regularly to be heard, the' pleadings being read, and to the affirmative defense set up in the second paragraph of defendant’s answer, viz.:</p> <p>‘‘And 'by way of affirmative defense this defendant alleges that it, the Atlantic Coast Line Railroad Company, is now, and was at the times mentioned in the complaint, a corporation duly chartered and organized under the laws of the State of Virginia, 'having its principal place of business at Petersburg, in the State of Virginia, and that Norris S. Nevils, the plaintiff ‘herein, at the time of said accident was a member of the Atlantic Coast Line Railroad Company Relief Department. Said Relief Department is am organization formed for the purpose of establishing and managing a fund for the payment of definite amounts to employees contributing to the fund who, under the regulations, are entitled thereto when they are disabled by sickness and to their families in the event of their death. That said Relief Pund is formed from contributions from the employees and the company advances made by the company in cases of deficiency and income derived from the investment. The regulations governing the said Relief Department require that those who participate in the benefits of the Relief Fund must be employed in the service of the Atlantic Coast Line Railroad Company. Defendant further says that participation in» the 'benefits of said Relief Pund is based, upon the'application of the beneficiary and subject to all 'the rules and regulations of said Relief Department. Defendant further sayis that thie said Norris. S. Nevils, being-in the employ of the defendant company, applied for membership in the said Atlantic Coast Dine Railroad Company Relief Department, and in said application agreed to be bound by the regulations of said Relief Department, and further agreed that in consideration of the amount paid and to be paid by said company for the maintenance of said Relief Department and of the guarantee by said company of the payment o'f said benefits, the acceptance of benefits for injury or death should operate as a release and satisfaction of all claims against the said company for damages arising from or growing out of said injuries. Defendant further alleges that when Norris S. Nevils received the alleged injury he thereupon became entitled to the benefits coming out of his membership in said Relief Department by reason of said injury while in said service. And the said Norris S. Nevils applied' to said department for said benefits and received therefrom the payments he was entitled to and the surgical and other attentions to which he was entitled by the rules of said Relief Department. Defendant further alleges that in accordance with the regulations of the said Relief Department plaintiff received all to which he was entitled by virtue of his membership therein. The said sums of money the plaintiff duly accepted under the regulations Of said Relief Department and in accordance therewith the said plaintiff in consideration of the payment to him of the said sums of money thereupon and thereby duly released and forever discharged this defendant from all claims and demand's for damages., indemnity or other form of compensation he then had or might or could thereafter have against this defendant by reason of said injury. One of the aforesaid regulations of said Relief Department by which plaintiff was bound provided that in. case o>f injury to a member who may elect to accept 'benefits in pursuance of said regulations or to prosecute such claims as he may have at law against the said company, and that the acceptance of benefits should operate as a release and satisfaction of all claims against this defendant for damages' arising from or growing out of said injury.</p> <p>“Wherefore, defendant alleges that the acceptance of said benefits from the said Relief Department for said alleged injuries operated to release and discharge this defendant company from any and all claims and damages arising therefrom.”</p> <p>The plaintiff urges his demurrer as follows.:</p> <p>“(a) That it appears upon the face of said defense that it does not contain facts sufficient to constitute- a defense for the reason that in said defense it is alleged that the plaintiff entered into a contract with the defendant, whereby it was agreed upon certain consideration that the defendant should be released from all claims of the"plaintiff for damages by reason of accidental injury or death; that such- contract is contrary to law and against public policy, and a release made according to the terms of said contract cannot therefore be pleaded as a defense to an action for damages caused by the defendant’s negligence.</p> <p>“(b) Because the contract under the terms of which it is alleged the plaintiff made a release to' the railroad company of all claims for damages is null and void under the Constitution of the State of South Carolina, being in effect a contract by which a railroad corporation seeks immunity from damages caused by the negligence of itself or its servants.</p> <p>“(c) Because it appears upon the face of said attempted defense that it is in conflict with the provisions of the Act of the General Assembly of 1903, entitled ‘An Act to Regulate and Fix the Liability of Railroad Companies Having a Relief Department to its Employees,’ and therefore is ineffective as a defense.”</p> <p>For pul-poses of the demurrer the allegations of the affirmative- defense in defendant’s- answer are admitted, and it being admitted that plaintiff was at the time of his injury a member of the Relief Department operated by the defendant, the maintenance of which was -contributed to both by the defendant and the plaintiff, and that under the rules of said Relief Department, after his injury he exercised the -option of accepting from the Relief Department such benefits as were due him, such acceptance by him under the rules of the Relief Department operated as -a release of his claim for damages against the defendant railroad company (Johnson v. Railroad Company, 55 S. C., p. 152). Plaintiff contends that if the receipt of Relief Department benefits would- under the case of Johnson v. Railroad Company, supra, -act as a release, -such a result does not obtain in view -of the Act of the General Assembly-, approved March 7, 1905, 24th. Statutes at Large, -page 962. It is my opinion- after careful consideration that the Act in question is unconstitutional and void as, and for the reasons appearing in the Circuit decree in Sturgess v. Railroad Company, 80.S. C., p. 167. Advance Sheets affirmed by divided Court.</p> <p>It is therefore ordered, that the demurrer to the affirmative defense is overruled, and since the admission of the facts set forth in the affirmative defense demurred to afford a complete defense to the action, the complaint i's hereby ordered dismissed.</p>

<p>Contracts — Tender—Misrepresentation—Fraud.—A compromise settlement of an estate between conflicting claimants is here invalidated because of false or unfair concealments of the amount of the estate to one of the parties who was not in a position to know and was not on an equal footing as to knowledge of the situation, the representations having been made to and did induce the party to make the contract. The party receiving the money in such compromise is not required to tender it back before bringing action to set the settlement aside.</p>

<p>Before Sease, J., Barnwell, April, 1910.</p> <p>Action by Z. I. Wilson against Daisy All and F. D. Bessinger. Defendant appeals from circuit order.</p> <p>cites: Verification of complaint: 28 S. C., 184; 33 S. C., 253. Injunction is only granted on verified complaint: 37 S. C., 230. Plaintiff has a legal remedy: Pom. Eq., sec. 1338; 17 S. C., 417; 24 S. C., 44; 42 S. C., 96; 10 Ency. P. & P„ 951.</p> <p>cites: Injunction matter settled by compromise: 8 Cyc., 504, 501, 518; 17 S. C., 289; 15 S. C., 224; Strob. Eq., 258; 28 Ency., 527. Appellant is estopped: 16 Cyc., 787; 53 S. C., 382; 19 S. €., 211.</p>