Volume 87 — South Carolina Reports

<p>1. Winthrop College under its original charter has the power to purchase and hold real property for the use of the college, and this power is not abridged or repealed by implication by the act, 21 Stat., 369, or the provisions in the supply act of 1906, 22 Stat., 255, 265.</p> <p>2. Contracts. — The trustees oj? the college could not contract beyond funds in hand or appropriated or which they expected to receive from donations or bequests, and the Court could decree conditional specific performance of a contract with such funds.</p> <p>3. Ibid. — Contract—Officers.—Here the plaintiff cannot raise the issue of want of mutuality in the contract of purchase of land, as that question could only be raised by the State or the other party to the contract. The only right of plaintiff is to prevent the trustees of the college from misappropriating public funds.</p> <p>4. Appeal. — A point not made before or considered by the Circuit Court will not be considered on appeal, except a question of jurisdiction.</p>

Before Memmingijr, J., Richland, December, 1909. Action by Olin M. Rhodes against Granby Cotton Mills. From judgment for plaintiff, defendant appeals on the following exceptions: 1. “Because counsel for defendant, having previously objected to testimony along the line, his Honor, against the objection of defendant, allowed the witness, J. C. Kirby, to testify as follows, to wit: Mr. Edmunds: Q. Who furnished you the list?

<p>Motion by Z. C. and W. S. Lynch in case of B. C. and Minnie Thomas against them for recall of remittitur.</p>

<p>Before SeasE, J., Darlington, June, 1909.</p> <p>Action by Rebecca Gainey against Sarah M. Anderson et al. From judgment for plaintiff, defendants appeal.</p> <p>cite: Can a married, woman bind herself not to claim dower? 16 S. C., 91; 33 SI €., 198; 30S. C., 305; 63- S: C./l; 54 S. C., 524; 52 S. C., 104; 48 S. C., 470 ; 20 S. C., 566’; 63 S- C., 166; 15 S. C.,’ 162; 32 S. C., 116; 30 S. C., 302. ’ Does general warranty contain clear covenant against dower? 9 Rich., 378; 5 S'. €., 406; 2 Strob., 81; 2 Speer., '652; 27 S. C., 198; 12 S'. C., 62; McM. Eq., 451; 11 Rich. Eq., 110" 74 S, C., 282; 54 S. C., 344;'78 S. C.,"422; 1 Strob. Eq., 60; 75 S. C., 475. The wife received valuable consideration for the deed: 57 S. C., 560, 9-5; 1 McC., 514; 2 Hill Ch., 335; 15 S. C., 602; 18-S. C., 371, 604; 24 S. C., 465;. 2 Ñ.& McC., 133 ;‘56 S. C., 169; 55 S-. C., 9. General warranty estops from denying title: McM. Eq., 193; 3 McC., 411; 17 S. C., 592; 21 S. C., 70; 54 S. C., 138; 30 S. C„ 302. Conveyance amounted to foreclosure and rénúHciation on mortgage enured to deed: 59 S. C., 569; 74 S. C., 55; 23 S. C„ 169; 36 S. C., 574; 24 S. C., 22.</p> <p>cite: Is plaintiff guilty of laches? Rice Eq., 158; 14 Cye., 982. Was plaintiff's deed voluntary? 27 S. C., 201; 71 S. C., 577. Does the renunciation on the mortgage cure the omission on the deed? Rice Eq., 158; 5 S. C., 216. Does the covenant of general warranty estop her? Code 1902, 2384, 2385; 2 Hill Ch„ 47; 16 S. C., 91; 20 S. C., 560; 33 S. C., 194; 52 S. C., 104; 63 S'. C., 126; 30 S. C., 302; 2 Scrib. on Dower, 263-5; Bigelow on Estoppel, 448, 450, 583.</p>

<p>Before Memminger, J., Spartanburg, May, 1909.</p> <p>.. Action by Roxana AValker against Selva Alverson et al. Prom judgment for plaintiff, defendants appeal.</p> <p>cite: Common law distinctions are not abrogated: Code 1902, 2353, 2465; Dud. Eq., 115. Rule of remainder at common law: 1 Fearne on Rem., 216; 2 Wendell’s Blackstone, 170; 4 Kent Com., 206; 10 Ency., 1 ed., 838-842, 849-851; Hill Ch., 357; 4 Rich. Eq., 276; 2 S. C., 72; 21 S. C., 529; 29 S. C., 285; 44 S. C., 512; 10 S. C., 382; 21 S. C.. 71; 69 S. C., 481. When vested: Hill’s Ch., 319; 44 S. C„ 823 ; 26 S. C., 421.</p> <p>cite: Contingent remainder is not subject to exception: 17 S. C., 952; 26 S. C., 450; 2 Hill’s Eq., 235; 11 Ency.,. 631. This remainder is contingent: 69 S. C., 503; Plopkins on Real Prop., 291; 2 Wash. Real Prop., 629; 20 Ency., 882; 74 S. C., 47; 7 L. R. A., N. S., 433. Test of remaiders: 10 S. C., 387; 52 S. C., 512; 74'S. C., 48; 20 S. C., 76; 23 S. C., 512; 26 S. C., 470; 54 S. C., 421; 22 S. C., 328; 38 S. C., 74; 16 S. C„ 316, 424; 66 S. C., 370; 69 S. C., 289, 513; 78 S. C., 118; 79 S. C., 409; 38 S. C., 197. Contingent remainder may depend on survivorship: 20 S. C., 72; 26 S. C., 470; 38 S. C., 74; 54 S, C., 421; 69 S. C., 288; 19 S. C., 323; 66 S. C., 370; 10 S. C., 387; 75 Ga., 377; 4 Rich. Eq., 276; 112 N. C., 1; 108 Ind., 264. Vested remainder subjected to be divested: 110 N. C., 93; Tiffany on Real Estate, 285, 286; 2 S. C., 6. Last provision of will governs: 1 Hill Ch., 360; McM. Eq., 201; 10 S. C., 386.</p>

Before Gage, J., Marlboro, April term, 1909. Action by W. S. Forbes & Co. against W. M. and J- J. Pearson. From judgment for plaintiffs, defendants appeal. cite: Witness should not'construe clauses'of the contract: 77 S. C., 92; 44 S. C., 236; 46 S. C., 229 ; Martin v. Tel. Co., 81 S. C. Verdict is contrary to weight of evidence: 75 S. C., 294; 68 S. C., 526; 69 S. C., 168; 65 S. C., 402, 389.

Before Memminger, J., Richland, November, 1909. Action by Eorick & Eowrance against Southern Railway. From judgment for defendant, plaintiff appeals. cite: Nonuse for tzventy years defeats right: 12 S. E., 917; 14 Cyc., 1186; 6 Rich. E., 403; 22 S. C., 547. Evidence shows an abandonment: 6 S. C.,- 212; Wash, on Eas., sec. 717; 1 Chest. R., sec. 363; Jones v. Van Boehne, 103 Mich. cite: Mere nonuser will not defeat right of way: Tiedeman on.

<p>Before MemmingER, J., Richland, December, 1909.</p> <p>Action by Allen Pfeiffer Chemical Company against O. Y. Owings, in court of Magistrate Jas. H. Fowles. From Circuit judgment reversing judgment of magistrate, defendant appeals.</p> <p>cite: Construction of contract: 34 S. C., 160.</p>

<p>1. Evidence. — That a promissory note, payable to the order of a firm, is handed the purchaser by a member of the firm with the name of the firm endorsed thereon, is presumptive evidence of a signing authorized or adopted by the firm.</p> <p>2. Ibid. — Ibid.—Fraud.—Representations of the payee of a plain promissory note, that it was not a negotiable note, but a paper expressing conditional liability, will not avail the maker in a suit by the endorsee for value before maturity and without notice.</p> <p>3. Ibid. — Ibid.—Statement by some of the joint makers of a note that all of the makers signed is presumptive evidence of that fact.</p>

<p>Checks. — A base is liable for a second check drawn -in favor of same . payee as first containing- the note on its face, “If previous check for $500, dated March 9th, is still unpaid,” when the drawer has sufficient funds on deposit at presentation of the second check to pay both, the first check being still outstanding.</p>

Before Klugh, J., Chesterfield, ........... Two actions by (1) S. O. Goodale, and (2) Gillespie Bros, against J. W. Page and Bennettsville and Cheraw Railway Company. From order overruling demurrer to complaints, defendants appeal. cite:.Bliss on Code Plead., 276-7; 3 Strob., 324; 48 S. C., 307; 16 S. C., 192; 22 S. C., 467; 19 S. C., 419.

<p>Before C. C. Frati-iRrstonr, Special Judge, Faurens, May, 1909.</p> <p>Action by Edwards & Walters against Enterprise Bank. From judgment for plaintiffs, defendant appeals.</p> <p>Messrs. Dial & Todd cite: Evidence of value of services incompetent: 16 S. C., 192; 22 Ency., 1376-8; 48 S. C., 298.</p>

<p>Warranty — Corporations.—Any direct representations made by a director of a corporation as to its financial status with a view of inducing a stranger to buy his capital stock of the corporation and acted upon by the buyer, whether the seller actually knew the facts were as represented or not, is an express warranty. Under the evidence here it was error to instruct the jury if they “believe from the evidence that the defendant merely stated that the books of the company showed that condition, their verdict must be for defendant.”</p>

<p>1. Pleadings — Notice.—Where it is necessary to allege notice and the pleader alleges it in the alternative, the facts relied on to constitute notice should he alleged.</p> <p>2. Ibid. — Ibid.—Striking Out. — If in this case the pleader meant to allege the facts set out charged plaintiff with notice of failure of consideration of the check, the defense was properly struck out, as no such inference can be drawn from the allegation that the indorsee of the check held a senior mortgage on a mule for a junior mortgage on which the check was given.</p> <p>3. Ibid. — Ibid.—Ibid.—But if the allegation of notice be properly-pleaded and intended to be independent of the other facts alleged, striking out is not reversible error, as the allegation of notice is made in better form in another defense.</p> <p>4. Negotiable Instruments — Checks.—That the payee of a chattel mortgage has failed to assign it to the maker of a check given in purchase of it, is no defense to an action by the indorsee of the check against the maker in absence of notice of failure of consideration before he became indorsee.</p> <p>5. Pleadings — Notice.—An allegation that indorsee of a check had notice of want of consideration before paying anything on it, made in one defense, cannot be assumed to mean in another defense that notice of want of consideration was to be inferred from the fact that indorsee held a senior mortgage on the property, for the purchase of a junior mortgage on which the check was given.</p> <p>6. Negotiable Instruments — Checks.—An indorsee of a check for collection can recover nothing thereon after notice of failure of consideration except what he has advanced before notice.</p>

<p>Before SeasE, J., Barnwell, March, 1910.</p> <p>Action by J. H. C. All against Jones A. Williams. From order overruling demurrer, defendant appeals.</p>

Before Shipp, J., Colleton, February, 1910. Two actions in Court of Magistrate P. J. Wilson, A. L. Carter against Willie Barnes, and J. B. Miley against B. B. Goodwin. From circuit order reversing judgment of magistrate in both cases, plaintiffs appeal. cite: Parties here can only raise question of constitutionality of subsection i: Ml S. C., 77; 15 S. C., 373; 40 S. C., 340; 33 L. R. A., 616; 43 Id., 181; 67 Id., 903.

Before Prince, J., Charleston, Fall term, 1908. Four cases: 1. Held: ‘Prior to the enactment of the Act of February 4, 1887, to regulate commerce, commonly known as the Interstate Commerce Act (24 Stat., at 1379, Chap. 104), railway traffic in this country was regulated by the principles of the common law applicable to common carriers.’ “So, too, in Bank of Kentucky v. Adams Express Co., and Planters’…

<p>' Judgment — Mortgages—Liens—Payments.—A simple contract creditor whose debt was contracted after the execution of two mortgages but before record of either out of time and without actual notice, whose debt was reduced to judgment after the record of the mortgages, divides the proceeds arising from sale of mortgaged lands ratably with the mortgages, but he should be paid before a simple contract creditor whose debt was contracted since the mortgages, without notice, but not reduced to judgment. The amount applicable to the two mortgages must be first applied to the second.</p>

<p>Before Gage J. Aiken October 1909.</p> <p>Action by W. H. Christian against Augusta and Aiken Ry. Co. in Court of Magistrate E. J. Craig. From circuit order sustaining judgment of magistrate, defendant appeals.</p> <p>cite: Plaintiff could have avoided'consequences by ordinary care: 15 Cen. Dig. 1775, o. q. v., 12 S. E. 1061; 1 Thomp. on Neg. 215, 217, 262; 66 S. E. 964. No evidence of zuilfulness: 60 S. C. 67; 1 Thomp. Neg. 265; 79 S. C. 209. No actual damages on which to base punitive: 6 Thomp. Neg. sec. 7172; 65 S. C. 1; 60 S. C. 67; 77 S. C. 60.</p> <p>cite: Plaintiff not required to act: 35 S. C. 483; 38 S. C. 487; 2 Deu. 625; 13 Cyc. 75; 8 Ency. 606. Case is based solely on zuilfulness: 70 S. C. 418; 77 S.'C. 56; 65 S. C. 326.</p>

Before Ernest M'oorE special Judge, York, January 1910. ■ Action by Sovereign Camp of the Woodmen of the World against Mollie Fincher Means and Charles A. Fincher for injunction.

Before DeVore J. Spartanburg, Fall Term 1909. Action by Clara Smith admx. against Southern Ry. Co. From judgment for plaintiff, defendant appeals. cite: L,aw of S. C. governs: 38 S. E. 893; 53 S. E. 726; 73 S. C. 140; Gilliland v. Ry., 84 S. C. Defendant is not liable for negligence of boss: 80 S. C. 539; 38 S. E. 914. Force of hands sufficient: 42 S. E. 610; 38 S. E. 914; 51 S. E. 851. Life expectancy cs fixed by the statute is not conclusive: 28 Am.

<p>Railroads — Wilfulness.—While there may he doubt of a recovery for wantonness in running locomotives and cars so near a dwelling as to make it unsafe by causing vibration, constantly blowing smoke into it and breaking down the fence, there can be none that such recovery may be had for emptying and 'washing locomotives and tenders so that the premises would knowingly be flooded with water and the continuance after notification and request to stop.</p>

<p>Before Gary J. Orangeburg October Term 1909.</p> <p>Action by Benj. P. Gue against Durham S. Wilson. From judgment for plaintiff, defendant appeals.</p> <p>cite: There being no evidence of negligence, verdict should be set aside: 54 S. C. 405; 51 S. C. 296. Recovery ccnno.t be had for act of negligence not alleged: 45 S. C. 278.</p> <p>cite: Evidence shows negligence: 78 S. C. 251; 1 L. R. A, N. S. 226; 116 Ky. 960; 82 S. C. 252. In absence of motion for nonsuit or to direct a verdict, Court cannot consider issues of fact: 84 S. C. 484; and may charge law applicable to punitive damages: 72 S. C. 411; 79 S. C. 513; 78 S. C. 73; 75 S. C. 293.</p>

Petition in the original jurisdiction of this Court by T. J. McLaughlin for writ of certiorari against J. L. Zeigler and the State Executive Committee. McLaughlin and Zeigler were both candidates for Supervisor in Calhoun county. McLaughlin contested the election of Zeigler on the ground that he had not filed in time after the election a sworfi statement of further moneys spent or provided in the election.

Before DeíVorE J. Charleston April 1909. Motion to dismiss appeal from order refusing_ new trial on after-discovered evidence by defendant in L. A. Mills against Atlantic Coast Line R. R. Co. The Circuit order refusing the motion is: “This was a motion 'heard by me at this April term of Court, 1909, for the above -county for a new trial in the above stated case, upon after-discovered evidence.

<p>Petition for rehearing- in case of L. A. Mills ag-ainst Atlantic Coast Line R. R. Co., reported in 85 S. C. 463.</p>

Before 'W. B. Gruber, Special Judge, October, 1909. Action by John A. DesPortes against Southern Ry. From judgment for plaintiff, defendant appeals. cite: Plaintiff is bound by. his contract: 26 S. C. 96; Lawson oni Car. sec. 102; 32 Am. Dec. 506; 62 S. C. 1; 72 S. C. 361; 17 Am. St. R. 415; 12 L. R. A. 823; Hutch, on Car. sec. 568, 580a, 580b; 81 Mich. 364; Fetter on Car. secs. 284, 289; 127 U. S. 390; 132 U. S. 146; 67 S. C. 268; 173 U. S. 684.

Before Gage J. Hampton Fall Term 1909. Action by James W. Moore against W. F. Cummings and Aaron Garvin. From judgment for plaintiff, defendants appeal. cite: Charge as to. title on facts: 61 S. C. 5; 42 S. C. 144; 40 S. C. 519; 67 S. C. 34; 66 S. C. 463. Stating facts in issue .is error: 68 S. C. 162; 76 S. C. 506, 257.

<p>Master and Servant — Wages—Damages.—An employee wrongly discharged may elect one of three remedies: 1. AVait until his wages are due under the contract and sue as upon performance; 2. Consider the contract at an end and sue on quantum meruit for work and ■* labor performed; or 3. Sue for damages for breach, of contract. The complaint in this action states a cause of action for breach of ■ contract and it was error to require it to be made more definite.</p>

Before Gage J. Sumter July 1909. Action by W. H. Baker against Western Union Telegraph Co. From judgment for defendant, plaintiff appeals. cites: Due care is for jury: 59 S. C. 549. cite: When testimony all points one way verdict should be directed: 71 S. C. 438 ; 73 S. C. 231; 69 S. C. 549.

<p>Before Prince J. Lexington February 1907.</p> <p>Three actions : 1. McGill Bros, against Seaboard Air Line Ry. 2. James W. Conner against same. 3. James W. Conner, administrator, against same. From judgment for defendant, plaintiffs appeal.</p> <p>cites: Evidence of origin of lire: 13 Eney. 513-14 and note citing numerous cases; 8 Ency. Ev. 933, note 34; 94 N. Y. Supp. 954.</p> <p>cite: The actions being under the statute, plaintiff is not required to show negligence: 24 S. C. 366; 31 S. C. 37; 83 S. C. 58. Rule as to admissibility of evidence when engine is identified: 48 S. E. 521.</p>

Before Gage J. Aiken October 1909. Action by William McIntosh against Augusta and Aiken Railway Co. in Court of Magistrate J. M. Merchant.

<p>1. Nonsuit — Verdict—Punitive Damages. — Whether the issue of punitive damages should have been submitted to the jury cannot' be considered in absence of motion for nonsuit or to direct a verdict.</p> <p>2. Carrier — Passenger—Ibid.—If an agent of a railroad company make a. contract with a passenger to carry him to a certain point for. a particular sum and another servant of the company consciously refuse to carry out the contract and extort more money from the passenger and expel him from the train, he may recover punitive damages.</p>

<p>Before Klugb! J. Richland Spring Term 1909.</p> <p>Action by Carola J. Diseker against Equitable Life Assurance Society of the United States. From judgment for defendant, plaintiff appeals.</p> <p>cites: Construction of accident policy: 8 Am. St. R. 758; 48 Am. R. 205; 127 U. S. 661; 23 Am. St. R. 637; 90 Ala. 201; 45 Mo. 221; 94 ICy. 547; 1 Ency. 306; 103 N. Y. S. 638; 180 U. S. 136 ;• 151 Ú. S. 452; 167 U. S. 159; 95 U. S. 673; 8 L. R. A. 81; 53 Ohio St. 79; 67 L. R. A. 5S6; 180 U. S. 40; 1 L. R. A. 564; 51 L. R. A. 701; 116 N. Y. 54;'46 S. C. 495; 111 U. S.'335; 78 S. C. 77. Construction of insurance contract: 183 U. S. 25; 151 U. S. 452; 136 U. S. 287'; 192 U. S. 149;'171 N. Y. 25; 173 Pa. St. 53; 182 Ill. 34; 75 Miss. 47-; 119 Ala. 436; 59 N. J. R. 964; 192 U. S. 162; 180 U. S. 136; 167 U. S. 159; 95 U. S. 673; 8 L. R. A. 81; 30 L. R. A. 72Ó; 67 L. R. A. 586; 1 L. R. A. 564; 51 L. R. A. 701.</p> <p>cites: Fireman on switching engine is engaged in service of switching cars: 26'N. E. 437; 53 N. E. 396; 164 Mass. 523; 30 N. E. 169; 48 N. W. 1007; 58 N. W. 1076; 168 Fed. 148.-</p>

<p>Charge — Negligence—Master and Servant. — An instruction to the effect that the jury may infer negligence from failure of master to bring forward all his employees who know anything about injury to an employee to testify as to it, is a charge on the facts.</p>

Before Shipp J. Greenwood Fall Term 1909. Action by Ohio Pottery and Glass Co. against B. C. Talbert. From judgment for plaintiff, defendant appeals. cites: Authority of agent may be inferred from circumstances: 7 Am. & Eng. Ann. Cas. 1035; 10 Ency. Ev. 8, 11, 24; 55 S. C. 568; 74 S. C. ’227; 31 Cyc. 1237; 2 Tread. 821; 55 S. C. 568; 31 Cyc. 1331-2; 67 S. C. 391; 31 Cyc. 1360; 15 S. E. 459; 53 Vt. 402; 119 Mass. 140.

Before Mrmminger J. Richland, October Term 1909. Action by J. L. Mott Iron Works against W. A. Clark. From judgment for plaintiff, defendant appeals. cite: Whether plaintiff’s salesman would extend credit to debtor is speculative: 55 S. C. 579; 81 S. C. 197; 84 S. C. 290. Is the paper a guaranty: 2 Dan. on Neg. Inst. 168; 1 Brandt on S. & G. secs. 103-4; 3 Kent, Com. 121; Story on Prom.

<p>1. Carrier — Presumptions—Perishable Freight. — Where a car of perishable freight is promptly delivered by the connecting carrier to the terminal carrier and by it delayed in transportation and delivered in-bad condition, with ventilators closed, the presumption arises that the damages occurred on the terminal carrier.</p> <p>2. Ibid. — Sunday.—Any freight train in transit which may reach its destination on Sunday morning by 6 o’clock may be lawfully run on that part of Sunday to its destination, and fruit and vegetable trains may run on Sunday without limitation as to hours.</p>

<p>1. Master and Servant. — Unless the increase of 'the danger due to taking off the appliances, attachments- necessary to its safe operation, was so obvious that a laborer of ordinary intelligence could not fail to see and appreciate it, the right to rely on the master’s obligation to furnish reasonably safe appliances is not lost.</p> <p>2. Ibid. — Issues.—Whether a common laborer assumed the risk with knowledge of a defect in the appliances to carry men and material across the river, or that he had the right to rely on the superior knowledge of the master as to the safety of the appliances after being warned, is for the jury.</p> <p>•3. Ibid. — Assumption of Risks. — A servant assumes the ordinary risks of his employment but not that arising, from the negligence of the master, except, perhaps, where the defects in appliances or the unsafeness of the place of work or incapacity of servants supplied by the master, is evident; but this limitation does not always defeat the servant’s right of action as waiver of master’s negligence or assumption of risks may be negatived,</p> <p>4. Ibid. — Ibid.—Ciia.rge.—The better practice in such cases is for the trial Judge to charge the general .doctrine of assumption of risks and those which the servant may assume by continuing in the service in the face of evident defects. But it is not reversible error to omit these qualifications and limitations when not requested to give them.</p>

<p>Bail Bonds — Suketies—Execution.—In an action against a party for fraud and embezzlement, he was arrested under an execution against his person, but appealed from the judgment and under habeas corpus proceedings was let to bail, the condition of -the bail bond being that he will, surrender himself to the custody of the sheriff and restore the status if his appeal should be abandoned or dismissed or the decree be affirmed. Upon modification of the decree, by declaring the arrest under execution unlawful, the bond is made void, and the bondsmen are not bound to surrender him to the sheriff, or, in default thereof, to pay the judgment.</p>

Before Hydrick, J., Richland, March, 1908. Action by M. C. Heath & Co. against Postal Telegraph Cable Co. From judgment for plaintiff, defendant appeals on the following exceptions : I. “That his Honor erred in refusing the motion for a nonsuit, made 'by defendant at the close of plaintiff’s testimony, upon the ground that there was no allegation in the compláint, and no testimony to show that plaintiff either paid or promised to pay anything for the transmission of the…

<p>1. Railroads — Communicated Fire — Negliegnce—Presumptions.—Testimony tending to show damage to property by fire communicated by a railroad' engine raises a presumption of negligence, which casts the burden on the railroad company to show its engine was constructed, equipped and managed with duet care.</p> <p>2. Amending Pleadings — Ibid.—A complaint alleging a communicated fire was negligently set out may be amended during trial by striking out the allegations of negligence and alleging a cause of action under the statute which makes the railroad company liable without regard to negligence.</p>

Before W. B. Gruber, Special Judge, Barnwell, October, 1909. Action by Paul Delacy Black against Charleston and Western Carolina Ry.

<p>Appeal prom Magistrate Court. — There being some evidence to support the finding on Circuit on appeal from magistrate court, that the ' assignor of a- contract for timber to he cut had agreed to pay seller, ■for.the timber cut by .the assignee, the judgment is affirmed.</p>

Before Sease, J., Lee, October Term, 1909. Action by Emma W. Woodward against Hosea W. and Henry Woodward. From order refusing to require plaintiff to make her complaint more definite and certain, defendants appeál. ' • ' , cite: 73 S. 'C. 29; Bliss on Plead. 316. cite: Order is not appealable: 50 S. C. 65. On main issue: 67 S. C. 495; Maxwell’s Code Plead. 13.

Before Si-iipp, J., Greenville, March Term, 1909. Action by Olivia V. Bowen, Administratrix of James O. Bowen, against R. E. Johnston. From judgment for defendant, plaintiff appeals. cites: The Court erred in giving the jury the law upon quantum meruit: 48 S. C. 303; 84 S. C. 80.

Before Dantzeer, J., Charleston, October Term, 1909. Action by Warren Chapman against American Cigar Co. From judgment for plaintiff, defendant appeals. cite: It was error to withdraw issue of contributory negligence from jury: 9 S. C. 154; 46 S. C. 43.

Before DeVore, J., Charleston, April, 1909. Action by John Allen Miles against Charleston Light and Water Co. From order sustaining demurrer in part both parties appeal. cite: Demurrer should not have-been sustained to a part of the cause of action: 64 S. C. 389.. Order ref using to .require plaintiff to-make his complaint more definite is not appealable until final judgment: 20 S. E., 790; 60 S. C., 521.

<p>1. Carrier — Communicated Fires — -Waiver—Issues.—From the fact that a carrier permitted a cotton dealer to leave his cotton as weighed placed on its platform until he got enough to make up a shipment for a number of years, it may be inferred the carrier waived its right to insist upon its public notice that it would not be liable for cotton placed on its platform without its consent unless ready for shipment, and the issue of waiver was properly sent to the jury.</p> <p>Insurance Go. v. Ry., 77 S. C., 467, distinguished from this case.</p> <p>2. Ibid. — Ibid.—Negligence.—In suit under the statute for damages from communicated fires it is not necessary to show negligence, and the fact that an engine is equipped with a modern spark arrester, in good condition, and there being no evidence that the engine was emitting sparks, are not conclusive that it did not throw sparks.</p>

<p>Before Ernest Moore, Special Judge, October term, 1909,</p> <p>Action' by Mary A. Montgomery against Southern Power Co. From judgment for plaintiff, defendant appeals.</p> <p>cites: What is an expert: 7 Ency., 491; 59 S. C., 318; 67 S. C.,.181; 62 S. €., 292; 72 S. C., 259. Collateral attack on deed: 63 S. C., 418; 69 S C., 93; .27 S. C., 380; 24 S. C., 128; 77 S. C., 191; 82 S. C., 450; 49 S. C-, 414. Estimating timber: 7 Ency., 492, 4-96; 57 S. C., 445; 61 S. C., 329; 308. No punitive damages for entry under deed: 70 S. C., 528; 71 S. C., 153. On allegation of: 78 S. C., 419; 61 S. C., 186; 64 S. C„ 491. \Non-suit should be granted upon proof differing substantially from allegations: 16 Ency., 745; 31 Cyc., 701; 711; 2 McC., 396; 21 S. C., 221; 33 S. C„ 477; 72 S. C., 474; 3 S. C.„401. ‘ . .</p> <p>cites: ■Exclusion of evidence after admission of same kind is harmless: 72 S. C., 425; 75 S. C., 266; 57 S. C., 69; 60 S. C., 19 ; 41 'S, C.. 420 ; 36 S. C., 373; 53 S. Cj 451; 69 S. C., 165; 40 S. C., 93; Elliott,on Ev., sec. 246; 100 Am. D., -628. . Punitive damages: 60 S. C., 56; 62 S. C., 330; 65 S. C., 1, 127; 69 S. C.,' 116. Nonsuit-properly refused: 5 Rich., 546 ; 1 Hill, 382; 75 S-. C„ 409; 59 S, €., 162;’57 S. C„ 429; 61 S. C.‘, 468; 63 S. C., 376; 70 S. C., 250; 21 S. C„ 93; 65 S. C., 1; 60 S, C., 73; 65 S. C., 127; 69 S. C., 132; 84 S. C, 102. Witness could not state gmount of timber unnecessarily cut: McKenzie on Ev., 172; Elliott on Ev., 674; 79 S. C., 154; 37 S. C., 417; 43 S. C., 126; 12 Ency., 421; 74 S. C., 102; 63 S. C., 572; 38 S. C., 213; 19 S. C., 68; 36 S. C., 485.</p> <p>The opinion in this case was filed October 4th, but held up on petition for rehearing until .</p>

<p>Before Wirson, J., Sumter, December, 1900.</p> <p>Action by W. T. Andrews against Sumter Commercial and Real Estate Company, its officers and majority stockholders. Defendants appeal from temporary injunction order of Judge Wilson and order of Mr. Justice Woods modifying the order of Judge Wilson.</p> <p>cite: Circuit Judge at chambers is without power to make an order permanent and perpetual in its nature on ex parte application: Con., Art. I, Sec. 5; Code of Proc. 240, 244. Order dispossesses grantee without hearing: 9 S. C. 303; 27 S. C. 408; 37 S. C. 227; 12 Rich. Eq. 108; 14 Rich. L. 96. The order has adjudged the deed null and void mthout hearing the grantee: 54 S. C. 457; 67 S. C. 93; 60 S. C. 146; 64 S. C. 408; 85 S. C. 13.</p> <p>cites: Remedy of appellant was to move Judge Wilson to vacate or modify his order: Code of Proc. 246; 55 S. C. 339; 27 S: C. 625. In a suit for injunction it is error to dissolve temporary injunction granted: 54 S. C. 473; 74 S. C. 178; 75 S. C. 220; 77 S. C. 416. Injunction may be granted on ex parte application: 37 S. C. 227 ; 69 S. C. 260. The circuit order is only temporary: 60 S. C. .569; 48 & C. 315; 77 S. C. 416'. Equity will protect minority stockholders: 2 High, on Inj., Secs. 1203, 1216; 10 Cyc. 964.</p>

Before Dantzrer, J., Charleston, December, 1909. Action by Atlantic Coast Dine Railroad Company against Jacob S. Schirmer & Sons.

Before Memminger, J., Richland, October Term, 1909. Action by John W. Brown against Atlantic Coast Line Railroad Company. From judgment for plaintiff, defendant appeals. cite: Right to have requests charged or refused: 67 S. C. 199; 66 S. C. 242. Carrier is not required to see if passengers had alighted: 67 S. C. 61.

<p>Before Wilson, J., Oconee, March Term, 1910.</p> <p>Action by Thomas- J. Garner against Western Union Telegraph Company, From order of nonsuit, plaintiff appeals.</p> <p>cites: Message carried notice of its importance and that mental suffering would result from delay: 72 S. 'C. 530; 77 S. C. 174; 82 S. C. 461; 26 Stat. 85. Where the evidence is conflicting or more than one inference can be drawn the issue is for the fury: 82 S. C. 547; 83 S. C. '325; 84 S. C. 293;. 82 S. C. 247. Proximate cause is also for the jury: 63 S. C. 130; 78 S. C. 384; 83 S. C. 66; 81 S. C. 303.</p>

Before WiLSON, J., Lexington, November, 1909. Action by J. J. Barfield against Southern Cotton Oil Company and A. C. Hammond.

<p>1. Charge — Contributory Neglicence. — It is not error for the Court in instructing the jury to fail to give the instruction as to contributory negligence immediately following the instruction as to liability of defendant for negligence, where that defense is clearly and fully defined in another part of the charge.</p> <p>3. Ibid. — Railroads—Crossing Signals. — The charge here not referring to the signalling statute and no instruction being given to the effect that the railroad was required to show that plaintiff was guilty of any greater degree of negligence than ordinary negligence, cannot be construed as leading the jury to believe the Court thought the action under the statute.</p> <p>3. Railroads — Crossing Signals — Negligence.'—Failure to give the signals required by statute to be given at crossings is negligence per se in an action at common law for an injury near a crossing.</p> <p>4. Charge — Life Expectancy. — While strictly speaking, instructing a jury that a person twenty-seven years old would be expected to live thirty-seven years in speaking of a mortuary table in evidence, there being no evidence that the person referred to was not of normal health and constitution, is on the facts, the error was harmless.</p> <p>5. Measure of Damages. — The instruction here given as to measure of damages construed to mean the earning capacity is the difference between the normal and impaired capacity to earn.</p>

Before Gage;, J., Barnwell. Action by Howard Caldwell against W. J. Duncan, W. H. Duncan, J. A. Koozer, L. W. Hill and H. C. Hay. From judgment for plaintiff, defendants appeal. cites: Options were the best evidence of the number of acres included therein: 75 S. C. 346; 60- S. C. 300'. It is error to attempt to coerce a jury into a verdict: 156 N. Y. 271. cite: It was not necessary to require the production of options: 43 S. C. 370'; 61 S. C. 292; 63 S. C. 78.

Before Gary, J., Horry, April, 1910. Action by A. C. T. Gore against A. P. Johnson. From order sustaining demurrer, plaintiff appeals. Contract zvas for exchange of property: 11 Cyc. 831; 17 Cyc. 834, 833, 836-8; 845-6. Replevin is proper remedy in such case: 1 A. K. Marsh 71; 29 Me. 341; 38 W-is. 216; 64 Me. 315; 17 Cyc. 846-7.' As to construction of pleading: 70 S. C. 277; 65 S. C. 285.

<p>Before Watts, J., Marion, November, 1909.</p> <p>Rule to show cause by Virginia-Carolina Chemical Co. against J. D. McLucas, Master, W. J. Montgomery and James H. Manning in re G. A. Norwood against Cash Ellerbe, Virginia-Carolina Chemical Co. et al. From order discharging note, petitioner appeals.</p> <p>cite: Master must follow terms of sale: 18 S. C. 500; Spear. Eq. 481; 9 Rich. Eq. 392. Time to, investigate title was too long: 18 S. C. 495. Interest on bid: 15 S. C. 612; 10 Rich. 60; 12 S. C. 600; 24 Cyc. 54; 17 Ency. 987. Assignment of bid does not discharge purchaser: 24 Cyc. 31; 7 S. C. 486.</p> <p>cites: Officer making sale is agent of parties: 86 S. C. 227. Mr. Buck cannot complain now having kept quiet at time of assignment: 84 S. C. 343. And is now estopped from raising question of interest: 76 S. C. 573; 57 S. C. 507; 42 S. C. 351.</p> <p>cite: Question of interest on bids is governed by equities of each case: 15 S. C. 612; 2 Bail. 520. Reasonable time is given for examination of titles: 35 S. C. 314; 55 S. C. 477.</p> <p>Statement oe Facts.</p> <p>The record contains the following statement of facts:</p> <p>“The action was brought to foreclose a mortgage executed by the defendant, Cash Ellerbe, to the plaintiff, which covered certain tracts of land owned by him, and which was a first lien thereon, and on which the defendant, Virginia-Carolina Chemical Company, held a second mortgage. Of the tracts of land described in the complaint, there was one known as the ‘Home Place’ of the said Cash Ellerbe, which contained three ¡thousand five hundred and ten acres, more or less.</p> <p>“The defendant, Virginia-Carolina Chemical Company, answered the complaint setting up its lien.</p> <p>“The matter was referred to J. D. McLucas, master, and resulted in a decree made by his Honor, Judge Charles D. Dantzler, dated November 16th, 1908, in which it was ordered that plaintiff, G. A. Norwood, have judgment against the defendant, Cash Ellerbe, for the sum of twenty-nine thousand, eighty-six and 58-100 dollars, which said sum was found to be a first lien on the premises described in the complaint; that the defendant, Virginia-Carolina Chemical Company, have judgment against its co-defendant, Cash Ellerbe, and certain other co-defendants, jointly and severally, for the sum of eleven thousand nine hundred forty-four and 72-100 dollars;'and have judgment against the defendant, Cash Ellerbe, individually for the sum of one thousand dollars, which said sums were held a lien on the ‘Home Place,’ second to the lien of plaintiff above mentioned.</p> <p>“It was further ordered, adjudged and decreed that the mortgaged premises described in the complaint, including the aforesaid ‘Home Place,’ ‘be sold at public outcry, before the courthouse door in Marion, South Carolina, by the master in and for the said county, on ¡the first Monday in December next, or some subsequent salesday, to the highest bidder for cash, the purchaser or purchasers to pay for the papers.’</p> <p>“The premises were sold on the 7th day of December, 1908, the ‘Home Place’ being bid off by W. J. Montgomery, attorney, for the sum of twenty-two thousand five hundred and ten dollars, he being at that price the highest bidder therefor.</p> <p>“The master then made a report of sale in the usual form, at the same time, making a supplemental report as follows:</p> <p>“ ‘J. D. McLucas, master, respectfully reports (as supplemental to his report on sales) in the case above stated, that at the sales of the lands of the defendant, Cash Ellerbe, under the decree of the Court in said cause, the tract of land containing 3,510 acres was bid off by W. J. Montgomery, attorney, for ($22,510) twenty-two thousand five hundred and ten dollars, -the said sale being made December 7th, 1908. That on January 30th, 1909, the said W. J. Montgomery assigned his said bid for said land to James H. Manning, which assignment is hereto attached as an exhibit to this report. That on the first day of February the said J. H. Manning paid to the master the said $22,510, and the master executed to him’ a deed conveying to him the said 3,510 acres of land.</p> <p>“ ‘That soon thereafter, the attention of the master was called to the matter of interest, which it was alleged, should-have been computed upon said bid of $22,510, from the day of sale until the bid was complied with, on February 1st, 1909. That thereupon the master made demand upon J. H. Manning, the purchaser, for two hundred and thirty-six and 34-100 dollars, the amount of interest found to be due on said bid. That said J. H. Manning refused to pay said interest or any part thereof.</p> <p>“ ‘The master, in making the sale, regards himself as the agent of both parties, the defendant, Cash Ellerbe, and his judgment creditor, Virginia-Carolina Chemical Company, whose debt was not fully paid out of the proceeds of the sale, and the first purchaser, W. J. Montgomery, attorney, and his assignee, J. H. Manning.</p> <p>“ ‘The master finds as matter of law, that a purchaser at master’s sale is liable for interest on the amount of his bid, from the day of sale until payment be made and deed of conveyance executed; that either W. J. Montgomery, attorney, the original purchaser, or J. H. Manning, his assignee, is responsible for the payment of said interest.</p> <p>“ ‘Wherefore, the master recommends that the Court issue a rule against said W. J. Montgomery, attorney, and- J. H. Manning, requiring them to show why they should not be ordered to pay to the master, for the benefit of the defendant, Cash Ellerbe, and his unpaid judgment creditor, the sum of two hundred and sixty-six 34-100 dollars, balance due on the sale of said 3,510 acres of land.’ ”</p> <p>His Honor, the -Circuit Judge, passed an -order that W. J. Montgomery and James H. Manning, show cause “why they should not be required to pay into the hands of the Court, the balance found to be due by the master, in said supplemental report;” also an order requiring J. D. McLucas, master, to show cause “why 'he failed to collect the balance found by him to be due, before delivery of the deed of conveyance, and why he should not be held responsible to the judgment creditors, for his failure to do so.” Each of said parties made return to the rule to show cause.</p> <p>The return to- the rule to show cause, made by W. J. Montgomery was as follows-:</p> <p>“That he bid off the thirty-five hundred- and ten (3,510) acres of land, set out in the return of the master, as therein stated. That subsequently to the bidding off of the property, upon investigating the title thereto, he ascertained- that in the division of the estate of the late W. S. Ellerbe, it was provided in the partition proceedings, that the mansion house located on the thirty-five hundred and ten acres of land, bid off by this respondent, was to remain as a home for certain of the unmarried daughters, naming them, his widowed daughter and her daughter, as long as they saw fit to occupy it as a home. That the infirmity in the title above stated, existed at the time respondent bid off the property, and of which he was ignorant at the time of making his bid. That as soon as this respondent learned of this defect, he notified the attorneys representing the plaintiffs, in the proceeding under which the property was sold, and also declined for this reason, to comply with his bid-, and offered to said attorneys to assign his said bid. That the matter remained in this shape, it being understood between the said attorneys and this respondent that the question raised, would be litigated and settled, in the most expeditious method possible; and this respondent with the said attorneys, had about perfected arrangement, for renting the property for the present year, when this respondent was approached by Mr. Henry Buck, representing one of the defendents, in said proceeding, with the statement that he had found a purchaser who would take respondent’s bid. Subsequently, respondent was informed, that the bid would be taken by Mr. James H. Manning, co-respondent 'herein. That in conformity with said understanding, and without any other understanding whatever, this respondent assigned his bid. That from the date of the assignment, January TO, 1909, until the filing of the supplemental report made by the master, this respondent never heard anything further, in reference to the said transaction, and was dumbfounded when informed by Mr. Buck, on the porch of the courthouse the first day of the criminal Court, that the master had filed said report, in reference to interest upon the purchase price of the property, hereinbefore referred to. That he so informed Mr. Buck, and expressed his great surprise that the master should have filed the report referred to, inasmuch as about nine months had elapsed since the transaction had occurred; and while respondent could- in no sense regard- himself, as liable on account of said bid, yet, had he been notified at the time the question arose between the master and- Mr. Buck and Mr. Manning, he might have -been able to have protected himself from loss in the matter, but as respondent now sees it, he would be wholly without remedy, through no fault whatever of his own. That respondent, in this connection, was informed by 'Mr. Manning a few days after Mr. Buck kindly informed him, about the filing of the master’s report, of the demand made upon him by the master, for the interest on the bid and his declining to pay it, and offering to return the deed, which was the first time that respondent had ever had any intimation or information of this feature of the matter. That this respondent knew nothing of the arrangement, by which Mr. Manning was to take over the property, and had' nothing whatever to do with that feature of the» transaction until he came with Mr. Buck, and possibly with Mr. Mullins, to respondent’s office to procure the bid. That respondent stated that he was ready to assign his bid, but inasmuch as his associates had not been consulted, he would call them over the phone and notify them, of what he proposed to do, which was done. That at the time of the assigning the bid, he told Mr. Buck, that he wanted the assignment carefully drawn, because he wanted no further trouble about the matter, as it had already given him. great annoyance, which respondent now repeats. That in a conversation had with Mr. Buck, at some time prior to the assignment, something was said about the bid’s drawing interest, in case respondent was forced to take title thereto; but at no time, either prior to the assignment, or at the time of the assignment or afterwards, did this respondent agree to pay interest on the bid, and when he made the assignment, it was his understanding, that he had nothing further whatever to d'o with the transaction; and, as stated above, this respondent remained in ignorance until the time stated above, that interest had been either claimed or paid, and had no knowledge or information further in regard to the transaction, one way or another, thus being left under the impression, until said report was brought to his attention, by all the parties connected therewith, that the entire matter had been closed up and settled at the date the assignment was made.</p> <p>“Wherefore, respondent insists that by his conduct the master is now estopped, from asking this Court to require this respondent, to pay the amount claimed by him as interest on said bid; and insists, outside of the legal estoppel, which he herein sets up, and which he believes he is of right entitled to plead, it would be equitable unjust and unreasonable on the part of the Court, to require him to pay the said amount of money or any part thereof; and he prays that as to him, the said rule be dismissed.”</p> <p>The view which this Court takes of the questions involved, renders it unnecessary to set out the other returns.</p> <p>The ruling of his Honor, Judge Watts, on hearing said returns, was as follows:</p> <p>“I think when Mr. Montgomery bid off the property and assigned it to Mr. Manning that let him out; I think when Mr. Manning took Mr. Montgomery’s bid', and the master gave him a deed for the amount of the bid, that let him out; and I think the master, following his usual custom and practice in a matter of this sort, allowed, in my opinion, not an unreasonable time that titles might be investigated. The rule is discharged.”</p> <p>The Virginia-Carolina Chemical Company appealed from the order discharging the rule to show cause.</p> <p>Opinion.</p>

Before Gage, J., Orangeburg, March, 1910. Action by J. H. Wallace against Orangeburg County. From judgment for defendant, plaintiff appeals. oral argument. cites: To recover plaintiff must show bridge ivas part of highway: 34 S. C. 141; and that he did not bring about the injury or contribute thereto: Code 1902, 1347; 57 S. C. 302, and that the injury was occasioned by county’s neglect: Code 1902, 1347; 57 S. C. 302.

Before Memminger, J., Sumter, July, 1910. Action by H. E. Edens against E. D. Epps in court of magistrate Geo. T. DesChamps. From circuit order defendant appeals. cites: Abuse of discre50; 17 S. C. 451. Only errors excepted to can be considered by Circuit Court: 54 S. C. 255. Magistrate has power to grant a nonsuit: 52 S. C. 156; 43 S. C. 66; 6 Ency. P. & P. 866. Oral argument

<p>1. Magistrate — Jurisdiction—Landlord and Laborer. — A magistrate has no jurisdiction of a proceeding to divide share crops where the amount lin controversy is beyond the jurisdictional amount of magistrate and the proceeding is equitable in its nature.</p> <p>2. Appeal.- — An order op reference made before answer filed is not appealable unless appellant is deprived of a mode of trial to which he is entitled by law.</p>

Before Memminger, J., Williamsburg, June, 1910. Indictment against Harrison Stone, Thomas Washington, Ellis Stone, Morris Stone and Ohesley Washington. From sentence of the Court, Ellis Stone, Morris Stone and Chesley Washington appeal. cites: Circuit Judge has no right to hold a party for crime because he thinks jury made a mistake in acquitting him: 12 Cyc. 274-5, 259; 20 S. C. 392; 8 Cyc. 1089; 42 Fed. 587; 2 McC. 129; 3 Brev. 142; Bish. Crim. Proc., sec. 1013; 61 Am.

Before Sease, J., Aiken, April, 1910. Action by J. D. Mitdhell against the Augusta and Aiken Railway Company in magistrate court. From judgment of Circuit Court affirming judgment of Magistrate J. M. Merchant, defendant appeals. cite: No duty to stop at ñag station unless ñagged: 73 S. C. MS; 9 Con. Dig., sec. 1040. No duty to wait for belated passenger: 69 S. C. 445; 15 Gray, 34. Statement of Facts.

Before Gary, J., Bamberg, June, 1910. Action by Carrie Ayer et al. against W. F. Hughes et al. From order overruling exceptions to report of commissioners, defendants appeal. cites: 75 S. C. 369; 10 Rich. Eq. 328. cites: 70 S. C. 549; 75 S. C. 373; 81 S. C. 62. Bank has no authority to guarantee the offer: 3 Ency. 800; 61 N. H. 589.

Before Henry Mullins, Special J., Wiliamsburg, March, 1910. Action by W. D. Bryan against P. R. Donnelly.

Before Klugh, J., Richland, May, 1909. Action by Mary L. Deal against Margaret E. Deal and A. M. Deal. Erom judgment for plaintiff, defendants appeal. cites: A beneficiary of an insurance policy takes a vested interest therein which can only be divested by a change of beneñciaries in the mode provided in the policy: 77 S. 'C. 300; 128 U. $. 195; 54 S. E. 786; 29 S. E. 118; 63 N. J. Eq. 692; 50 N. Y. Sup. 470; 90 N. Y. Sup. 471; 218 111. 202; 70 S'.

<p>Appeal — Service of Foreign Corporation. — Finding by trial Court that the party served was not the agent of a foreign corporation will not be reversed on appeal where there is evidence to support it.</p>

<p>Pleadings — Breach of Trust. — An indictment charging that defendant held in trust and fraudulently converted the money of another, denominating the money as “goods and . chattels,” is sufficient as clearly informing the defendant of the charge he was to meet.</p> <p>8tate v. Shirer, 20 S. C., 392, explained.</p>

<p>1. Pleadings. — An indictment charging a defendant by his initials is sufficient where he is in the habit of using only the initials and is known by them, where the record makes plain the identity of the accused.</p> <p>2. Circuit Judge — Charge.—The duty is imposed by the Constitution on the trial Judge to guard against questions or remarks during trial which may so influence the jury as to make him a participant in their, findings. Here it is held the questions by the Court of the witness and his remarks to him were not violative of this rule.</p> <p>3. Pleadings — Indictment.—That a defendant procured a check under false pretenses and collected the money therefor will support an allegation in an indictment charging him with obtaining that amount of money under false pretenses.</p> <p>4. The defense of insanity does not -in every case import an admission of the act committed. But in view of the fact that the defense relied on the act charged as tending to show insanity, an instruction that this plea admitted the act is harmless error.</p> <p>5. Insanity. — The test of insanity is mental capacity or the want of it sufficient to distinguish moral or legal right from moral or legal wrong and to recognize the particular act charged as morally or legally wrong.</p> <p>6. Charge — False Pretenses. — Where the Court had charged again and again that the element of fraud was essential to the crime of obtaining money under false pretenses, it is not error to refuse a request that if defendant obtained the money and did so with the intention of returning the same without a fraudulent intent, he would not be guilty.</p>

<p>X. Subface Watee — Negmgen-ce.—A railroad company has the right to so construct its roadbed as to dam up surface water and an adjoining proprietor is not entitled to recover for damage to his land whether the construction was negligent or not. In view of the final instructions to the jury and their inquiry on coming out, it is held that an instruction in the first part of the charge to the effect that such proprietor could recover if the roadbed was negligently constructed, is harmless error.</p> <p>2. Instructions as to finding a verdict to jury on being called in after being out some time, held to be within the conduct of the trial and within the Court’s discretion.</p> <p>3. Appellant must show prejudicial error in exclusion of evidence.</p>

<p>Before MemmingER, J., Sumter.</p> <p>Acting by Building Supply Co. v. C. E. Jones. Erom judgment for plaintiff, defendant appeals.</p> <p>cites: Statements by Judge are of the testimony and violate the constitutional provision: 47 S. C. 488; 85 S'. C. 280'. Buyer should inspect, and if defective should reject all: 34 S. C. 508</p> <p>cite: Case must show the judgment appealed from: 59 S'. -C. 557; 63 S. C. 123; 69 S. C. 231. Seller of personal property warrants articles sold: 80 S. C. 29‘2. Delivery of personal property is a mixed question of law and fact: 51 S. C. 561. If goods are defective buyer is entitled to a discount: 37 S. C. 73.</p>

Before DeVore, J., Spartanburg, September, 1909. Indictment against J. B. Bates for murder. From sentence, defendant appeals. cite: Remarks as to effect of opinion evidence prohibited by Constitution: 5 Ency. Ev. 656, 637, 713, 646, 647. cites: Remarks in ruling on evidence has not the effect of instructions: 39 S. C. 350'; 36 S. C. 534; 61 S. C. 21; 49 S. C. 413; 33 S. C. 100; 72 S. C. 352. Rule for construing charge: 43 S. C. 133; 35 S. C. 269, 291.

Before DbVorR, J., Chester, April, 1910. Indictment against Otis Hilton for murder. From sentence, defendant appeals on following exceptions: 1. “Error of his Honor in refusing to stand aside the juror, W. H. Eatihan, when examined upon his voir dire; this juror was not indifferent, as he was related by blood within the sixth degree to J. M. Eathan and S’.

Before W. B. Gruber, Special Judge, Spartanburg, July, 1910. Indictment against Elias Rookard for unlawfully keeping in possession liquo'rs. Defendant appeals from sentence. cites : Keeping liquors in possession is contrary to statute: 39 S. C. 151; 24 S. C. 593.

<p>1. Mortgages — Corporations.—Subsequent lien, creditors cannot attack the validity of a mortgage executed by a corporation for valuable consideration on ground that all the stockholders were not notified as required by subdivision 8 of section 1889 of Code of 1902, where the majority of the stockholders were notified and attended the meeting authorizing the execution of the mortgage.</p> <p>2. Iisin. — Mechanic's Lien. — The lien of a mortgage is subordinate to a builder’s lien, the last item in which was furnished before the execution of the mortgage where the statement was filed and action brought within the statutory limit, but it is not subordinate to judgments obtained on such accounts filed and sued after the statutory limit.</p> <p>3. Rehearing refused.</p>

<p>Telergaph Companies — Master and Servant — Assumption op Risks.— A lineman employed by a superintendent and put under a 'foreman, who employs and discharges servants, cannot recover of the master for an injury caused by the negligence of the foreman while discharging the duties of a fellow servant as foreman.</p>

<p>1. Jury. — The jury commissioners do not err when they lay aside names drawn for the petit jury because one is reputed to be of unsound mind and to be tried at that Court, because they do not know another and he is said to have moved away, and because another is said to be a drunkard.</p> <p>3. Murder. — Testimony tending to show that a defendant shot his wife in the neck, that she died a few days after, that such wound would have caused death, will support a verdict of murder.</p>

<p>Before DeVore, J., Spartanburg, October term, 1909,</p> <p>Action by Clarence Cumming, by guardian, against Bryan Lawrence. Prom judgment defendant appeals on the following exceptions:</p> <p>I. “Because the presiding Judge erred in allowing the plaintiff’s counsel, against the defendant’s objection, to ask, and have answered, questions from the defendant’s witness, G. W. Greene, as to the financial standing of the defendant, when such testimony was competent only for the purpose of collecting punitive damages, when there was no evidence in this case tending to show a right to any such damages.</p> <p>II. “Because the presiding Judge, having allowed testimony as to the financial ability of the defendant on the theory that punitive damages were demanded in the,complaint, he erred in that, having afterwards ruled that no such damages could be recovered in this case, he failed to instruct the jury that they should pay no attention at all to testimony as to the defendant’s pecuniary standing.</p> <p>III. “Because the presiding Judge erred, as a matter of law, in not holding, on the defendant’s motion for the direction of a verdict, that if there was any negligence on the part of the defendant shown in the case, such negligence was the negligence of one Heney, who, under the uncontradicted testimony, was a fellow servant with plaintiff, and in not, therefore, directing a verdict on the ground that the negligence shown being of a fellow servant, the plaintiff could not recover in this action.</p> <p>IV. “Because the ruling by the presiding Judge on the motion to direct a verdict that if the plaintiff was over fourteen years of age he would not hesitate a moment to grant the motion, was tantamount to a holding by him that the unc.ontradicted evidence showed that the plaintiff had sufficient capacity to make him subject, just as any adult would be, to the defense of fellow servant; and this being-true, it was error of law for the Circuit Judge to hold that he could not, under the law, direct a verdict in favor of the defendant on this ground.</p> <p>V. “Because the presiding Judge erred in not holding on the motion to direct a verdict that the plaintiff, even though he was under fourteen years of age when his injuries were received, was subject, so far as the motion in question was concerned, to the same rules of law as an adult or an infant over fourteen years of age would be, and in not, therefore, on the uncontradicted evidence in the case, granting the motion for the direction of a verdict in favor of the defendant.</p> <p>VI. “Because the presiding Judge erred in leaving to the jury the question whether the plaintiff and the party through whose alleged negligence he was injured were fellow servants or not, when, under the law and the uncontradicted evidence in this case, the said party was a fellow servant with plaintiff, and it was the duty of the presiding Judge to so instruct the jury.</p> <p>VII. “Because the presiding Judge erred in not holding that while it is a general principle of law that the presumption is that an infant between the ages of seven and fourteen years is presumed not to have .capacity sufficient to make him guilty of contributory negligence — still in a clear case, as here, where the uncontradicted evidence shows clearly, as here, that such a plaintiff has capacity sufficient to charge him with contributory negligence, it is the duty of the presiding Judge to so hold, and in not, 'on this principle so holding in this case.</p> <p>VIII. “Because the presiding Judge erred in instructing the jury as follows: ‘On the other hand, if the person who was starting the machinery was a fellow servant with the party who was injured, and he was not representing the master, and it was the negligence of a fellow servant that caused the injury, why, the master would not be liable; and in considering that you must take into consideration the age of the party injured, whether he had sufficient knowledge, sufficient intelligence, to assume the risk, whether he knew the danger, whether he knew that it was his duty to avoid the danger and to use care himself;’ the error being:</p> <p>“(a) In limiting the cases in which the plaintiff could not recover because the negligence alleged was the act of a fellow servant to cases in which the alleged fellow servant did not represent the master, when the nonrepresentation of the master referred to should have been stated to be in respect to nondelegable matters.</p> <p>“(b) The instruction was erroneous, in that it led the jury to believe that the plaintiff could not be barred of a recovery, being a minor, unless the jury should find that he had sufficient intelligence to assume the risks of his employment and to know the dangers thereof, and to know that it was his duty to avoid the danger and use care himself, when, under the law, if the question of the intelligence of the plaintiff, he being an infant, was involved at all as to the matter of the defense of fellow servant, the obligation on the defendant was that of showing this, and this only, namely, that he had sufficient intelligence to know that he was to work with, and might be injured by, another servant working with him.</p> <p>IX. “Because the presiding Judge erred in not instructing the jury, as requested in the defendant’s sixth request, as follows: Tf the jury believe from the evidence that the plaintiff was injured through the negligence of an employee of the defendant, Lawrence, and that such employee was a fellow servant with the plaintiff and did not stand in the relation of master to him, then the plaintiff cannot recover in this action, because the law says that if an employee is injured through the negligence of a fellow workman or fellow servant, he cannot hold the master or the employer of both liable for his injuries,’ and in modifying such instruction to the jury as follows, to wit: T charge you that, as I have already done in sum and substance, but in the consideration of that you must take into consideration the age of this party here that is alleged to have been injured, as I have instructed you in regard to his age all along in my charge;’ the error being:</p> <p>“(a) The instruction should have been given as requested, without the modification, as, under the law, the plaintiff, whatever his age was, was subject to the defense of fellow servant.</p> <p>“(b) It was error to qualify the request as stated, because, as charged in the preceding exception, such qualification imposed upon the defendant the duty of showing greater mental capacity than it was necessary to show in order to make plaintiff subject to the defense of fellow servant.</p> <p>X. “Because the presiding Judge erred in instructing the jury as follows, to wit: ‘So, Mr. Foreman, if you conclude that the plaintiff is entitled to recover, you have it in your power to find any amount, up to twb thousand dollars. You cannot go over that, but you can find any amount under that. If you find, as I stated, that he is entitled to recover, whatever amount you find he is entitled to, write “We find for the plaintiff so many dollars,” writing it out in words, not figures, and sign your name as foreman;’ the error being in instructing the jury that they could find in favor of the plaintiff to the amount of two thousand dollars, when that sum had been demanded in the complaint for both actual and punitive damages, and when he had previously instructed the jury that they could not allow any sum for punitive damages, and it was consequently error of law to instruct the jury that they could allow as much as two thousand dollars for actual damages alone.</p> <p>XI. “Because the presiding Judge erred in not granting the defendant’s motion for a new trial on the second ground upon which such motion was based, to wit: ‘Because the verdict of the jury was one that could not legally be rendered.</p> <p>“ ‘(a) If the jury intended to give no punitive damages; they gave a larger verdict for actual damages than the plaintiff had asked, and, therefore, the verdict was illegal.</p> <p>“‘(b) If the jury intended to give punitive damages, their verdict was in conflict with the charge of the Judge, and, therefore, illegal.’</p> <p>“In either case the verdict was wrong, and should be set aside. A new trial nisi on this ground would not be right, because it is impossible to ascertain either how much of the two thousand dollars demanded in the complaint was for actual damages, or how much of the verdict was intended to represent punitive damages, if punitive damages were given at all; the error being:</p> <p>“(1) The plaintiff demanded both actual and punitive damages in the aggregate sum of two thousand dollars. The jury was instructed that they could not render anything for punitive damages. As the demand for damages, both actual and punitive, had only been two thousand dollars, the jury could not legally render a verdict for the full sum demanded for actual damages alone, and it was error of law for the Circuit Judge not to so hold and riot to grant a new trial on this ground.</p> <p>“(2) If the verdict of the jury was intended to cover both actual and punitive damages, it was error of law not to set it aside on that ground, as the instruction had been that punitive damages could not be given.”</p> <p>cite: Bvidence as to financial ability of defendant was improperly admitted: 6 Thomp. Neg., sec 7171. Presumption as to assumption of risks by minor: 76 S. C. 453; 83 S. C. 19; 1 Labatt, secs. 470, 291; 2 Id. 488. Cases in point: 80 S. C. 50; 73 S. C. 180; 63 S. C. 462; 70 S. C. 539.</p> <p>cite: Issue of vice principal or fellow servant is for jury: 51 S. C. 96; 80 S. C. 546; 1 Thomp. Neg., sec. 580; Id., sec. 4681; 82 S. C. 546; 1 Labatt, sec. 465. Assumption of risk is for jury: 66 S. C. 204; 81 S. C. 525; 72 S. C. 420; 61 S. C. 468; 4 Thomp. Neg., sec. 4867; 1 Lab., sec. 348; 83 S. C. 21; 80 S. C. 351; 76 S. C. 543, 455.</p>

<p>Before W. B. GeubEr, Special Judge, Spartanburg, September, 1910.</p> <p>Rule against Ed R. Abbott and Frank Dearman to show cause why suspended sentence should not be enforced. From order enforcing sentence, defendants appeal.</p> <p>cite: Can the Court impose a sentence, suspend it and then enforce it after expiration of time within which it should have been served? 64 N. W. 939; 45 N. W. 898; 33 Pac. 620; 33 Mich. 296; 122 Mass. 317; 62 N. W. 177; 104 Ga. 509; 91 Am. St. R. 143; 60 At. 893; 95 Am. St. R. 230, 853; 19 L. R. A., N. S., 1042; 23 L. R. A. 856. Can the defendants complain after accepting clemency of the Court? 62 N. W. 177; 21 N. E. 563; 26 N. E. 651; 27 E. R. A. 625. Defendants can only be sentenced according to amended act: 58 S. C. Ill; 2 Rich. L. 418; 30 S. C. 105; 47 S. C. 174; 49 S. C. 316. The offense of gambling is notv exclusively within jurisdiction of magistrate court: 30 S. C. 105; 14 S. C. 346; 6 S. C. 464; 26 S. C. 121.</p> <p>cites: Courts have power to suspend sentence on terms: 141 N. Y. 288; 65 N. H. 183; 115 N. C. 760; 68 Miss. 251; 26 Fla., 310; 114 S. W. 477; 106 N. Y. 925; 118 Cal. 332; 97 Pac. 188; 75 N. H. 402; 74 At. 875. Sentence may be imposed some time after conviction: 32 S. C. 14; 70 S. C. 400. Court retained jurisdiction of defendants: 18 S. E. 437; 143 Mass. 211; 11 N. J. E. 133.</p>

<p>Governor — Constitutional Law — New Counties. — After ordering an election on a proposed new county, the governor, or his successor, has-authority to reconsider the matter and upon a satisfactory showing-that some constitutional requirement has not been complied with or met to vacate the order of election, if no private or property right will thereby be destroyed.</p>

Before Gage, J., Sumter, February, 1910. Held: regardless of its pretensions. “The defendant Bowman denies that he was insolvent when the deed was made; and, if he was not, of course he had the right to make the deed, so far as that statute is concerned. “The Sumter Banking and Mercantile Company makes the same denial. “These two may be considered as one person, for they are…

Before DeVorE, J., Richland, June, 1910. Indictment in Court of Magistrate J. H. Fowles, Jr., for deducting from weight and price of cotton for bagging and ties. Held: ‘That the statute fixing maximum charges for the storing of grain and prohibiting contracts for larger amounts were valid.’ ‘Legislation prescribing the number of hours for employees to work has frequently been sustained.’ See Soonhing v. Crowley, 113,U. S. 703, 28 L. Ed. 1145.

<p>Before SeasE, J., Sumter, October, 1909.</p> <p>Indictment against Alexander Causer for murder of Jim Miller. Defendant appeals from sentence of involuntary manslaughter.</p> <p>cites: Verdict of involuntary manslaughter cannot be legally rendered under indictment for murder: 63 L. R. A. 396; 21 Cyc. .765. Only four possible verdicts under indictment for murder: 49 > S. C. 285.</p> <p>cites: Indictment for murder includes involuntary manslaughter: Crim. Code, 108; 8 S. C. 237; Hughes Cr. L. par. 27; 4 Bl. Com, par. 191; 3 Green. Ev. par. 120. Offense need not be defined in exact words of elementary writers: 24 S. C. 116. Error not harmful shottld not be complained of: 40 S. C. 349. Res gestae: 68 S. C. 304.</p>

Before Gage, J., Sumter, February, 1910. Proceeding to escheat the bond of Simon Dingle. From order dismissing action, surety H. T. Edens appeals. oral argument. cites: Sufficiency of return: 34 Cyc. 551. Clerical errors will not invalidate recognisance: 34 Cyc. 549, 550, 569.

<p>Before Memminger, J., Darlington, April, 1910.</p> <p>Indictment against Eli Gandy in Court of Magistrate C. K. Rouse. From order dismissing appeal, defendant appeals.</p> <p>cite: Sunday should be excluded: 80 S. C. 156; 76 S. C. 176; 78 Am. Sf. R. 379; 28 Ency. 223; 76 S. C. 176. Judicial acts on Sunday are usually held void: 3 E. R. A. 658; 49 L. R. A. 218; 30 E. R. A. 498.</p> <p>cite: Sunday should be included: 19 S. C. 143; 57 S. C. 50; 2 Ency. P. & P. 266; 78 Am. St. R. 379; 14 E. R. A. 120; 49 L. R. A. 204; 15 E. R. A., N. S. 687; 57 S. C. 52; 15 S. C. 110; 16 S. C. 593; 76 S. C. 176; Crim. Code 66, 67, 75. Could the magistrate waive service? 69 S. C. 520; Crim. Code 68, 71; 14 S. C. 380; 74 S. C. 443; 84 S. C. 534.</p>

<p>1. Housebreaking and Larceny — Compromise.—Evidence tending to show a wife left her home in the morning after hooking the window and locking the door, when she returned she found the window open and a pair of shoes, a bracelet and a ring missing, she afterward recognized the shoes in possession of defendant, who offered to settle the charge by paying for the shoes, will support a verdict for housebreaking and larceny.</p> <p>2. Larceny — Presumption—Burden.'—The possession of stolen property raises a presumption of guilt, casting upon the accused the burden of explaining the possession to be consistent with innocence.</p>

Before Audrich, J. Anderson, September, 1909, term. Indictment against James Bates, James Hix, Ed Rhodes and Arthur Keasler for forcible entry and detainer and destroying landmarks. From sentence on verdict of guilty on the first count, defendants appeal.

Before Gage, J., Lee, Summer term, 1909.. Indictment against James R. DuRant for assault and battery with intent to kill. From sentence, defendant appeals. cites: Judge should have declared the law applicable to the case: 58 S. C. 93. cites: Evidence tending to show malice is admissible: 49 S. C. 550; 73 S. C. 277. Cross-examination of defendant: 55 S. C. 247.

<p>Before Watts, J., Saluda, March, 1910.</p> <p>Indictment against M. H. Perry for disposing of property under lien. Defendant appeals.</p> <p>cite: Indictment charges selling in Saluda county: 11 So. 200. Removing cotton is not a crime: 57 S. C., 264; 43 S. C. 201; Crim. Proc. 11; 57 Cal. 374; 22 Minn. 78. Value of property should be alleged: Bish. Cr. Prod. secs. 540, 541, 567, 488b; 7 Blackf. 168; 37 Tex. 359 ; 66 Barb. 131; 1 Tex. App. 522; 42 Ala. 396; 50 Ala. 139; 35 Tex. 15; 39 111. 223; 8 Port. 447; 31 Cal. 451; 2 Hale Pleas of Crown 183; 9 Rich. 432. Variance between paper alleged and proved is fatal: 5 Rich. 10; 2 McM. 15; Ell. on Ev., sec. 200; Clark’? Crim. Proc. 333.</p> <p>Oral argument.</p>

<p>Stay op remittitur is not a prerequisite to the hearing of a motion before a Circuit Judge.</p>

<p>Before Shipp, J., Chester. July, 1910.</p> <p>Motion for new trial on after discovered evidence in State v. John Rodman. Defendant appeals.</p> <p>cite: Court below has jurisdiction: 80 S. C. 367; 82 S. C. 126.</p> <p>cites: Remedy was motion to stay sentence: 43 S. C. 410; 46 S. C. 566; 39 S. C. 436.</p>

<p>Before DeVore, J., Spartanburg, November, 1909.</p> <p>Indictment against Tom Badgett for murder of Brezina Súber. Defendant appeals.</p> <p>No citations.</p> <p>cites: Defendant is responsible for a death caused by his negligence: 58 S. C. 218; 92 Am. Dec. 417; Whar. on Horn. sec. 458; 1 Cok C. C. 97; 3 Id. 439; 2 Id. 141; 12 Id. 355; 125 Ill. 584.</p>

<p>1. New Trial. — Refusal of motion for new trial on after discovered evidence is not disturbed because it cannot be said that the affidavits must necessarily lead any reasonable mind to the inference that the newly discovered evidence would probably change the result.</p> <p>2. Witness. — When a defendant goes on the witness stand he submits himself to the inspection of the Court, and it is not improper for a juror in open Court to examine his hands and ask him about a scar on one, there being evidence in the case to the effect that one had been bitten on the hand in the transaction under investigation.</p>

<p>Before -:- J., Colleton-----, 1910.</p> <p>Indictment against Jerry Smalls for murder of William Green. Defendant appeals.</p> <p>Oral arguments.</p>

Before DeVore, J., Richland, May, 1910. Certiorari proceedings by School District No. 9, of Rich- - land county, against James H. Fowles, Jr. magistrate, and John C. Weir. Defendants appeal. cites: Omission in return did not render the judgment invalid: 22 S. C. 119; 23 S. C. 167. Return of service could be amended: Code, 194; 14 S. C. 226; 57 S. C.-558; 26 S. E. 187; 32 S. C. 319. Oral argument.

<p>Before Kuugh, J., Chesterfield, November, 1909.</p> <p>Action by T. J. Sheridan against Frank Spangler Company. Defendant appeals.</p> <p>cite: Jurisdiction obtained by collusion is not good: 11 Cyc. 673; 62 111. 35; 5 Fed. 394; 4 Fed. 78; 3 Cyc. 514, 529; 13 111. 691; 29 Minn. 46. Admission of depositions: 84 S. C. 358; 23 Stat. 1072; 67 S. C. 428; 30 S. C. 153; 39 S. C. 410; 38 S. C. 386; 39 S. C. 308; 81 S. C. 24.</p> <p>cite: Defenses to attachment were zvaived by general appearance: 46 S. C. 15; 35 S. C. 372; 20 S'. C. 93; 61 S. C. 512; 14 Rich. 29. Deposition irregular: 29 S. C. 45; 39 S. C. 410; 1 Pet. 351; 15 Wall. 151.</p>

Before Watts, J., Anderson,-1910. Action in magistrate court by Aug. Wright Co. against B. H. Hodges.

Before Shipp, J., Richland, September, 1910. Action by W. G. Childs against the City of Columbia. Plaintiff appeals. cites: Plaintiff was entitled to restraining order until hearing: 69 S. C. 159; 67 S. C. 93; 62 S. C. 221; 60 S. C. 569; 75 S. C. 224; 82 S. C. 271; 54 S. C. 473. A city has a right to dispose of its surplus water: 34 E. R. A. 525; 105 Fed. 1; 66 Fed. 140; 30 Enc. 428; Dill, on Mun.

<p>Estoppel. — That a nonresident made a contract with a city to obtain water by connecting with its pipes, and did so connect at considerable cost and built houses on the faith of so obtaining a supply of water, does not estop the city from terminating the contract on reasonable notice, there being no time for its duration stipulated. That the permission to so connect was granted by the city on condition that the nonresident comply with the ordinance, which he did not do, weakens his right to estoppel.</p>

<p>Real Property. — Verdict directed on grounds: (l) that those from whom plaintiff claimed held the land adversely long enough to presume a grant from the State, (2) that the only inference from the testimony is that the possession of those in whom defendants endeavor to show title was merely permissive, (3) they could not hold adversely on account of the minority of at least one of the plaintiffs, reversed, because: (1) it was disputed who held the land for twenty years and whether the possessions taclred would show continuous adverse possession for twenty years, (2) the party through whom plaintiffs claim was not sole owner of the land, (3) there was no new entry during the minority of any of the plaintiffs.</p>