Volume 88 — South Carolina Reports

<p>Before Gage, J., Bamberg, April, 1910.</p> <p>Two cases, W. J. Hutto et al. against Ben Black; and the same against Scott Kennedy, Marcus Daniel and John Hutto. Defendants Ben Black, Scott Kennedy and John Hutto appeal.</p> <p>Messrs. Buist, Bates & Simms and Davis cite: Service of infant under fourteen: 45 S. C. 334; 40 S. C. 69. Above fourteen: 22 S. C. 49; 23 S. C. 167; 59 S. C. 504. Infants are estopped by intervention: 85 S. C. 562. Construction of deed: 11 Rich. Eq. 264; 14 Id. 146.</p> <p>cite: Construction of deed: 42 S. C. 347; 2 Wash. Real Prop., chap. 4, sec. 8; 2 Rich. Eq. 49. Service of minors: 23 S. C. 159. Minors are not estopped: 26 S. C. 186.</p>

<p>1. Carrier — Passenger—Conductor—Punitive Damages. — The testimony here tends to show that both the carrier selling the ticket and its connecting carrier are liable for the acts of the conductor of the connecting carrier and that his conduct was consciously oppressive, thereby giving rise to a claim for punitive damages.</p> <p>2. Punitive Damages. — The part of the charge here objected to, construed to mean an act may be wilful when the wrongdoer does not actually realize that he is invading the rights of another, provided the act is committed in such a manner that a person of ordinary reason and prudence would say it was in reckless disregard of another’s rights.</p>

Before Keugii, J., Clarendon, February, 1910, term. Action by T. Parker Brown against Northwestern Railroad Company of South Carolina. From Circuit judgment, defendant appeals on the following exceptions: I. “After defining the rights of the parties as to surface water, the presiding Judge charged the jury: “ ‘The law is different with reference to watercourses. Where water flows in a natural and accustomed route, any landowner is required to allow that water to so flow.

<p>Before Memminger, J., Marlboro, May term, 1910.</p> <p>Action by Maggie B. Huestess and others against the South Atlantic Life Insurance Company. From judgment on verdict directed by the Court, the plaintiffs appeal.</p> <p>Messrs. McColl & McColl cite: Effect of fraud in contract: 25 Cyc. 800. Applications filled out by agent of company: 40 S. C. 548. Effect of knowledge of agent of falsity of statement in application: 75 S. C. 329; 79 S. C. 526. Power of agent to bind company: 57 S. C. 358; 70 S. C. 301; 74 S. C. 246; 183 U. S. 308. Waiver: 52 S. C. 225; 51 S. C„ 181.</p> <p>cites: Knowledge of the condition of insured's health by the agent is knowledge of the company: 79 S. C. 526; 82 S. C. 51; 80 S. C. 392; 75 S. C. 315; 74 S. C. 246; 84 S. C. 181, 156; 63 S. C. 197; 70 S. C. 295; 78 S. C. 397; 81 S. C. 472; 54 S. C. 457; 52 S. C. 228; 83 S. C. 264; 80 S. C. 392.</p> <p>cite: Party must read paper signed by him: 77 S. C. 187; 62 S. C. 1; 77 S. C. 361; 9 Cyc. 388; 14 Pa. St. 496; 91 U. S. 45, 83, 236; 84 S. C. 95; 61 S. C. 338; 25 Cyc. .810, 18. Not all information conveyed to agent is imputable to principal: 50 S. C. 290; 74 S. C. 374.</p>

Before Sease, J., Clarendon, October term, 1909. Action by E. J. Touchberry against Northwestern Railroad Company of South Carolina.

<p>1. Forgery. — He who presents to an express company an order for a package of liquor, knowing the consignee had not requested him to get it or had not given him the order to get it, but that another person had given him such order and representing to the express company that the consignee sent the order, ■ which he knew was false, is guilty of forgery.</p> <p>S. Appeal. — Error in admission of evidence not shown to have been prejudicial will not be considered.</p>

<p>1. Demurrer. — Where a Circuit Judge on appeal from magistrate adjudges that defendant is entitled to a nonsuit, but remands the case for such action as the plaintiff may see proper to take, and he brings another action on the same cause of action without having magistrate enter nonsuit in first action, demurrer on ground that there is another action pending on the same cause of action or that the issues are adjudicated in the first action, is not well taken.</p> <p>2. Principal and Agent — Estoppel.—Where one borrows money, giving a due bill signed by him as an individual but states in the body of the bill it is for another, there being no evidence that he was the agent of the other with power to borrow money, but there being no evidence that the money was not used for the benefit of the other as expressed in the bill, the third party is estopped from denying the agency of the subscriber.</p> <p> Divided Court. </p>

Before MbmmingEr, J., Charleston, May, 1910. Action by H. J. Baker & Co. against John Doe and Richard Roe, unknown owners of steamship “Powhatan.” From order refusing to vacate attachment and set aside service of summons, defendants appeal. Mr. Huger cites: No property belonging to defendants has been attached: Hunt on Tender, par. 362, 454; 41 Am.

<p>Before DanTzler, J., Abbeville, March, 1910.</p> <p>Indictment against George Latimer for assault and battery with intent to kill. Defendant appeals.</p> <p>No argument furnished Reporter.</p>

Before Watts, J., Greenville, July, 1910. Action by Lewis A. Brown against J. F. Gallivan Building Co. Defendant appeals on following exceptions : 1. “Error in allowing the plaintiff to answer the following question: Tf you had known- that, those planks were not spiked would you have ever done that ?’ This was an opinion and a conclusion. 2. “Error in allowing the plaintiff to answer the following question: Tf you had been told it was not spiked would you have undertaken to…

<p>1. New Triad. — That the evidence was too remote, speculative and consequential to support the verdict should be made by motion for nonsuit or to direct a verdict and not by motion for new trial.</p> <p>2. Verdict — Charge.—There being nothing in the record to show that discoloration of the lumber entered into the verdict, nor that it was contrary to the charge, and there being no exception to the admission of evidence as to discoloration, exception on the ground that the verdict is contrary to the charge is not considered.</p> <p>3. Attead. — Whether damages are excessive is for the trial Court unless they are such in amount as to indicate fraud or corruption or caprice.</p>

<p>1. Carrier — Punitive Damages — Passengers.—That a passenger on a street car told the conductor she was a stranger and wanted him to tell her where to get off at a certain place, that he so told her and while she was getting off, the car standing still, a sudden jerk threw her to the ground, tends to show a reckless disregard of the passenger’s rights.</p> <p>2. Ibid. — Passenger—Presumptions.—If a passenger is injured by means of any of the instrumentalities in the charge or control of the carrier, there arises a presumption of negligence causing the injury.</p> <p>3. Ibid. — Moving a car is an instrumentality or agency of the carrier, and negligence may be infei*red from injury to a passenger while alighting in the ordinary way by the carrier’s initial act of moving the car.</p> <p>4. Exceptions not raising a question of legal error in the charge objected to, will not be considered.</p> <p>5. Issues.' — Submitting to the jury legal propositions is not reversible error unless it is shown to have been prejudicial.</p> <p>6. Carrier — Presumptions—Passengers.—A presumption arising from the fact that a passenger was injured through an instrumentality of the carrier continues throughout the trial of the case.</p>

Before Wieson, J., Anderson, January term, 1909. Indictment against John Crosby for murder of Ed Acker.

<p>1. Pleadings — Cities and Towns — Streets—Estoppel.—Under the charter of the city of Greenville the only way to test the legality of a claim for damages for changing the grade of a street is by injunction against the charter .proceeding to assess the damages and where such action is begun and withdrawn under an agreement to submit to a jury in the Circuit Court the issue the commissioners would pass on, no answer on the part of the city is necessary as the only issue is the amount of damages, nor could the issue of estoppel be properly decided in such trial.</p> <p>2. Cities and Towns — Streets—Condemnation—Damages.—Under said charter a citizen damaged- by having the sidewalk abutting his property lowered for a cement pavement is only entitled to the difference, if any, between the damages to his property and the benefits accruing to it from such sidewalk.</p> <p>3. Ibid. — Ibid.—Damages.—A statement or agreement made by the mayor to or with the citizen is not conclusive of the matter.</p>

Before C. C. FbathErstonE, Special Judge, May, 1910. Action by Florence J. Bailey against the Town of Clinton. Plaintiff appeals. Mr. McGowan -cites: Preliminary injunction should not have been dissolved: 42 S. C. 435; 54 S. C. 457; 69 S. C. 159, 554; 84 S. C. 53. Respondent must proceed under the statute as written: 63 S'. C. 204; 38 S. C. 308.

<p>Before Wieson, J., Abbeville, September term, 1910.</p> <p>Indictment against Jack Starks for assault and battery with intent to kill. Defendant appeals.</p>

<p>Before Shipp, J., Lancaster, June 1910.</p> <p>Action by Sumter Coffin and Casket Manfg. Co against Lancaster Mercantile Co. in the Court of Magistrate W. P. Caskey. From Circuit order affirming magistrate judgment, plaintiff appeals.</p>

<p>Before W. C. Davis, Special Judge, Sumter, April, 1910.</p> <p>Indictment against Thomas Nelson for housebreaking and larceny. Defendant appeals.</p> <p>cites: As to capacity to commit crime: 15 S. C. 414; 54 S. C. 163; 16 En'cy. 313; 22 Cyc. 623.</p>

<p>Juitoits — Challenges.—When it is agreed between- State and defense to waive the rule requiring each juror to be presented- singly and to object alternately to the full box, the -State may object to one originally drawn after declining to object twice and after three new jurors had been put in the box to fill defendant’s objections.</p>

Before DantzeER, J., Laurens, Spring term, 1910. Indictment against Parrott Milam. Defendant appeals. cite: Ruling out declarations of prosecutor: 33 S. C. 117; 32 S. C. 392. Jury should be fully instructed as to o)ffense charged: 49l S. C. 518. Oral argument.

<p>1. Rescission of Contracts — Abatement.—One purchasing land, going into possession and committing acts of ownership thereon after knowledge of an outstanding title cannot have the contract rescinded before eviction except for fraud, nor can he recover damages pro tanto in action to rescind.</p> <p> Divided Court as to remedy. </p> <p>Mr. Justice Hydrick thinks where a complaint states facts entitling plaintiff to one of two remedies, the prayer may be resorted to, to ascertain which he has elected to pursue, and where this and the condmct of the case shows he has elected to pursue one and the proof does not entitle him to that relief his complaint should be dismissed without prejudice.</p> <p>Mr. Justice Woods, the Chief Justice, concurring, thinks, in an action for rescission, where the proof does not warrant that relief, the plaintiff may have the lesser relief of abatement of the price if the evidence is sufficient to show that relief to be equitable.</p> <p> Doctrine of rescission discussed and cases reviewed. </p> <p>3. Rehearing refused.</p>

Before Gary, J., Lexington, June, 1910. Messrs. Bfird & Dreher cite: Stating facts in interrogative form is error: 49 S. C. 496; 50 S. C. 168; 79 S. -C. 197; 47 S. C. 489. Charge to grand jury in presence of petit jury prejudicial to defendant: 28 L. R. A. 367. Solicitor Timmerman and Mr. Asbill cite: Statement of contention of parties is not a charge on the facts: 62 S. C. 546; 63 S. C. 372. Nor is stating an admitted fact: 66 S. C. 23; 65 S. C. 169; 68 S. C. 37, 392.

Before W. B. Gruber, Special Judge, Barnwell, January, 1910. Petition of Paul E. Zeigler and Virginia S. Zeigler in re P. T. Haydock Carriage Co. against Paul E. Zeigler and Virginia S. Zeigler. So much of the Circuit decree as pertains to the questions at issue is: “Phis cause has already been considered by the Supreme Court, and the issues have been very much simplified by the decision of that Court.

Before SeasE, J., Barnwell. Winter term, 1910. Action by J. D. Whittle against Southern Ry.

<p>1. An appeal lies only from a decree or judgment, but here an appeal is considered from' rulings, as if the party had been denied the mode of trial he was entitled1 to, because the parties so desire and have gone to .the expense of preparing the case for this Court.</p> <p>2. Real Property — Partition—Eciuitable Title — Issues—Practice.— Where one defendant in an action for partition sets up title to himself in the whole land, the issue of title should he tried by jury, but if on the trial the plaintiff’s evidence tends to show an equitable title in him to a part of the land and the legal title in the defendant, verdict should be directed in favor of defendant, and plaintiff be permitted to amend his complaint so as to set up his equitable title.</p>

Before Klugh, J., Chester, April term, 1909. Action by C. M. Sibley and Rhoda Vaughn against Eliza Sibley, W. E. Adams 'and Mary Jane Westbrook. Plaintiffs appeal. cites: Disability of one cotenant does not protect others against presumption of a grant: 48 S. C. 489, 28; 4 Rich. 521. Minor could in i8gp be served by acceptance by guardian: 3 S. C. 321; 6 S. C. 462; 37 S. C. 346; 56 S. C. 107; 18 S. C. 357; 13 S. C. 93; 5 Rich. Eq. 200; 5 Rich. 200; 4 DeS.

Before Gage, J., Richland, November term, 190-8. Action by C. H. Manson et al. against Lydia A. Dempsey. From judgment for plaintiff, defendant appeals. cites: Where a special verdict is indefinite or vague it should be set aside and a new trial granted: 6 Rich. L. 56; 68 S'. C. 66; 45 S. E. 562; 47 S. C. 488; 10 S. C. 493. This is an action for the recovery of specific real property: 12 Rich. L. 200; 13 Id. 172; 42 S. C. 138.

An action instituted in this Court by the Attorney General under a Concurrent Resolution of the General Assembly directing him to bring an action against the owners of the dam 'across Savannah River requiring them to erect and maintain proper fishways therein or to abate the dam.

<p>1. Special Terms op Court. — The governor has authority, under section 2744 of the Code of 1902, to order a special term of the Court of Sessions upon the recommendation of the solicitor, and of the Common Pleas upon the recommendation of the majority of the bar, and to appoint to hold such extra term a man learned in the law suggested by the Chief Justice of this Court.</p> <p>2. Ibid. — -Notice.—It is not necessary that formal notice of a special term called by the governor be published by the clerk over his signature.</p> <p>3. Murder. — The evidence here was sufficient to connect the defendant with a concocted scheme to commit several murders and the evidence as to them was competent.</p> <p>4. Ibid. — Charge.—That the trial Judge said in admitting certain evidence, it was let in to show the animus of defendant toward deceased, and he would so instruct the jury in his charge, which he neglected to do, is not fatal error as the jury must have understood from the rulings and charge that they should not convict unless defendant was found guilty of the crime charged in the indictment.</p> <p>5. Rehearing refused.</p>

<p>Before Wilson, J., Greenwood,-.</p> <p>Action by Worley Adams against G. K. Fellers. Plaintiff appeals.</p> <p>cites: The law of Georgia does not require a contract between bailor and bailee to be received: 36 S. E. R. 426; 27 S. E. R. 183. Transfer of property according to the laws of the State of transfer is binding everywhere: 7 Wall. 151; 85 S. C. 485, 30; 73 S. C. 140; Wharton on Con. of Laws 1062-4; 75 S. C. 512.</p> <p>cites: The mortgage in this State passes title: 27 S. C. 471; 29 S. C. 460; 45 S. C. 344; 55 S. C. 120; 106 Am. St. R. 153; 22 Sup. Ct. R. 102; 60 S. C. 40; 79 S. C. 281; 75 S. C. 368, 203; Minor Conflict of Laws, sec. 6; 12 S. W. 913.</p>

Before Watts, J., Charleston, September term, 1910. cite: Evidence of a different and subsequent trial cannot be introduced in a trial for murder: 1 Green. Ev., secs. 51 and 52; 40 S. C. 481; 56 S. C. 360; 82 S. C. 153 ; 68 S. C. 421; 41 S. C. 526; 13 S. C. 459; 62 L. R. A. 193; 21 N. E. 821; 25 N. E. 764; 72 S. W. 1005. contra, oral argument.

Before Aldrich, J., Charleston, April, 1910. Action by Mattie V. Estes against Brotherhood of Railroad Trainmen. Defendant appeals. cite: Refused to charge there was no evidence of wavier and saying when so refusing he could point out such evidence was error: 72 S. C. 361; 74 S. C. 135; 79 S. C. Ill; 80 S. C. 140; 78 S. C. 395; 81 S. C. 548. What is wavier? 84 S. C. 97; 81 S. C. 156.

<p>Carrier — Passenger.—Conductor.—Negligence.—Even if it is the duty of the conductor to be at the front end of the passenger coach on a mixed train while passengers are alighting and the carrier’s servants did not know that she was about to disembark at the rear, the evidence that there was no safety chain at the rear end between the guard rails and that a sudden jerk of the train precipitated the passenger off the car through this space, was properly sent to the jury on the issue of the failure of the carrier to use the highest degree of care for the safety of its passengers.</p>

<p>Before Ernest Moore, Special Judge. Fairfield, September, 1910.</p> <p>Indictment against Fletcher Dawson for rape. Defendant appeals.</p>

Before Watts, J., Saluda, March, 1910. cites: Section 438 Criminal Code applies to temporary obstructions, and section 433 to permanent: 61 S. C. 25; 62 N. W. 426. cites: The exceptions raise no questions of law: 61 S. C. 71; 62 S. C. 377; 63 S. C. 22.

Before Ardrich, J., Charleston, February term, 1910. cite: The use of an auto without the consent of the owner is not the subject of a criminal indictment for conspiracy; 2 Hill 282; 13 East 228; 11 S. C. 230. Count charging malicious mischief is not good: Bish. on Stat. Crimes, sec. 447; 54 S. C. 198; 14 S. C. 353; 10 Rich. 373; 1 Rich. 179; 2 N. & McC. 560. The agreement was not proved: 49 S. C. 422; 40 S. C. 330.

<p>Before Shipp, J., Abbeville, September, 1909.</p> <p>Indictment against R. A. Richey for carnal knowledge of a girl under 14 years. Defendant appeals.</p> <p>cites: Evidence of subsequent act: 45 N. W. 1109; 73 S. W. 401; 34 So. R. 840; 16 N. W. 131; 48 Am. R. 734; 62 D. R. A. 335. As to amending indictment: 24 S. C. 224; 33 S. C. 112; 80 S. C. 405.</p> <p>Oral argument.</p>

Before DeVorE, J., Abbeville, May, 1910. Action by Ella L. Sizemore against Mary C. Jennings. The Circuit decree is: “This is a motion for a temporary injunction and was heard by me at chambers, at Columbia, South Carolina, on notice duly given in this behalf.

<p>Before Wilson, J., Greenville.</p> <p>Action by Wood-Mendenhall Co. against City of Greer in Court of Magistrate Samuel Stradley. Erom Circuit order affirming judgment of Magistrate Samuel Stradley, defendant appeals.</p> <p>cite: City authorities in issuing license act in a ministerial capacity: 37 S. W. 478; 42 Am. R. 369 ; 12 Pac. 484.</p> <p>cite: License tax not properly levied is not valid: 34 S. C. 244; 30 S. C. 15; Art. VIII, secs. 3, 6. One tax on the business covers all: 21 Ency. 814; 32 So. 1007; 55 Ga. 33; 3 S. 'W. 328; 66 111. App. 290; 5 E. R. A., N. S. 619; 45 S. €. 602; 76 SC. 238; 115 S. W. 742; 9 S. W. 294; 49 S. W. 26; 90 S. W. 594; 111 S. W. 351; 25 So. 280; 27 So. 30. Tax paid under protest may be recovered: 2 Dill. Mun. Corp., sec. 943; Code 1902, 432, 414; 34 S. C. 242; 49 S. C. 449; 71 S. C. 231.</p>

<p>Before Aldrich, J., Greenville, February, 1910.</p> <p>Action by Eliza E. Buist against J. Hudson Williams, William A. Williams et al. The Circuit decree is:</p> <p>“This action was instituted in the Court of Common Pleas for Greenville county on July 9th, 1907, for the purpose of substituting other real estate for that covered by certain mortgages executed by the plaintiff, Eliza F. Buist, on February 7th, 1877, and December 18th, 1897, respectively, which mortgages were given to the probate judge for Greenville county to secure two bonds of Hugh B: Buist, trustee, upon which the plaintiff was surety. The real estate ■ covered by the mortgages is property near the city of Greenville, which the plaintiff desired to cut up into lots for sale; she offered to' substitute for it certain other real estate which she claimed was amply sufficient to secure said bonds. ■</p> <p>“The defendants, other than Hugh B.. Buist, by their answer resisted the proposed substitution; and from what was intended by the plaintiff as simply a friendly suit for a change of securities, the suit quickly developed into a contest over the proper accounting by the trustee of the trust fund committed to him.</p> <p>“The cause was referred to J. W. Gray, master of Green-ville county, to hear and determine all issues of law and fact. The master took a mass of testimony and on April 6th, 1908, filed his report, ascertaining that the corpus of the trust fund in the hands of the trustee was $6,833.43, and that in addition thereto the cestuis, J. Hudson Williams and William A. Williams, were entitled to 33.35 per cent, of the real estate proposed to be' released, by reason of the fact that trust funds in that proportion of the original cost were traced as part of the purchase money paid for it.</p> <p>“The plaintiff and the defendant, Hugh B. Buist, excepted to the master’s report.</p> <p>“On November 14th, 1908, the plaintiff served upon the defendants notice of motion to amend her complaint in certain particulars, which motion was allowed by the Court, and from the order the defendants, J. Hudson Williams and William A. Williams, appealed to the Supreme Court, which later affirmed the order of Judge DeVore permitting the amendment. Subsequently thereto the master held another reference at which he took certain testimony bearing upon the amended complaint, and filed his report in which he sustained the contention of the defendants as to the construction of the trust deed. To his report the plaintiff and the defendant, Hugh B. Buist, have filed exceptions.</p> <p>“The cause comes before me upon the exceptions of all parties to the first report filed by the master and upon the exceptions filed by the plaintiff, Eliza E. Buist, and the defendant, Hugh B. Buist, and also the exceptions of the defendants, Williams, to the last report filed by the master.</p> <p>“It appears from the testimony that on August 26th, 1858, John H. Williams, of Newberry county, conveyed certain real estate situated in Abbeville county, consisting of two thousand fifty-seven (2,057) acres, to James W. Williams upon the following trust:</p> <p>“ Tn trust for the sole and separate use of my aforesaid grandchildren for and during their natural lives, and at their respective deaths their respective shares of said land, or the proceeds thereof if sold, shall be divided among their respective issue living at their respective deaths according to the provisions of the Acts of the General Assembly of this .State for the distribution of intestate estates, but should either of my said grandchildren die leaving no issue living at the time of his or her death, then in that event the share of such grandchild so dying shall go to the survivor or survivors of my said grandchildren, to be held by the said James W. Williams, as trustee, upon the same terms and limitations that he holds the original shares; and in case all three of my said grandchildren should die without leaving issue surviving them, then and in that case the said land, or the proceeds thereof if sold, shall be equally divided among my four children, James W. Williams, Robert G. Williams, Elizabeth C. Williams and Theresa O. Williams, the child or children of a deceased child taking the share its or their parent would have taken if living at the happening of the contingency last mentioned.’ During the year 1871 said John H. Williams conveyed to said James W. Williams another tract of land upon the same trusts and limitations.</p> <p>“The grandchildren referred to were Martha E. Williams, Eliza Williams and William A. Williams. Martha E. Williams died many years ago unmarried and childless, and her interest in the trust estate devolved upon the other two, Eliza F. Williams and William A. Williams.</p> <p>“On January 31st, 1877, Hugh B. Buist was, by order of Court, substituted as trustee of Eliza F./Buist (formerly Williams) in the'stead of James W. Williams, the original trustee, and gave bond to the probate judge of Greenville county in the sum of nine thousand dollars, dated February 7th, 1877, which bond was signed by Eliza E. Buist as surety and was secured further by the mortgage of Eliza F. Buist upon the 82 1-10 acres described in the complaint of same date. December, 1897, H. B. Buist having sold the Burgess land, executed to the probate judge his bond in the penal sum of four thousand, nine hundred and twenty-eight dollars as such trustee; and said Eliza E. Buist signed said bond as a surety and executed and delivered to the probate judge of Greenville county on said eighty-two and one-tenth acre tract of land to secure the same,.a mortgage of same date. The proceeding under which H. B. Buist was substituted as trustee effected a division of the trust estate between Eliza E. Buist and W. A. Williams, the original trustee, James W. Williams, continuing to act as trustee for W. A. Williams until his majority, at which time he brought suit and secured a settlement with his trustee. W. A. Williams died about 1888, and his interest in the trust estate devolved upon his two sons, the defendants, J. Hudson Williams and William A. Williams. This share of the trust estate is not involved at all in this litigation. The contest is over the ultimate disposition of the share of Eliza F. Buist, who it is admitted will, in the nature of things, die childless.</p> <p>“Hugh B. Buist, as trustee for Eliza F. Buist, received from various sources the gross amount of $7,084.60, which after deducting commissions for receiving and other proper allowances leaves the net sum*of six thousand seven hundred and fifty-seven and 50-100 dollars, and is charged by the master with $744.03 profits on the Piney Mountain property, which had been bought by him with trust funds and afterwards sold, total $7,501.53. This represents the corpus of the trust estate, the issues and profits of which have been paid annually to the life tenant, Eliza F. Buist, as she was entitled thereto.</p> <p>“Prior to his appointment as trustee of Eliza E. Buist, Hugh B. Buist had intermarried with her, and on January 7th, 1873, had been appointed guardian of her person and estate, she. being a minor. On July 12th, 1873, Hugh B. Buist, as guardian of Eliza E. Buist, purchased the 82 1-10 acres, described in the complaint, from the devisees of John H. Marshall, at the price of $4,150, $1,900 of which he paid in cash from the funds of the guardianship estate, and secured the remainder, $2,250, by his-note and mortgage of the property purchased; he taking title to himself as guardian of Eliza E. Buist and executing the note and mortgage in the same capacity. On October 8th, 1875, Hugh B. Buist, as guardian, had a final settlement with his ward, Eliza E. Buist, and on that date secured an order of discharge from the probate court of Greenville county.'</p> <p>“On February 7th, 1877, the day he qualified as trustee of Eliza F. Buist, Hugh'B. Buist, as guardian, conveyed to Eliza F. Buist the 82 1-10 acres conveyed .by the devisee of John H. Marshall to him as guardian of Eliza F. Buist; and on the same date Eliza F Buist mortgaged the same to the probate judge of Greenville county to secure the bond of Hugh B. Buist, trustee. After the execution of the note and mortgage by Hugh B. Buist, guardian, to S. S. Marshall, administrator, for $2,250, various payments were made upon the same by Hugh B. Buist, guardian, until February 8th, 1877, the day after he conveyed the property to Eliza F. Buist, when by calculation it was ascertained that there were due upon the same $318.70, which Hugh B. Buist then paid to the mortgagee; and on March 30th, 1877, the mortgage itself was marked satisfied, but the record was not so marked until March 30th, 1878, a year later. The balance of $318.70 paid by Buist to satisfy the mortgage on February 8th, 1877, is admitted to have been a part of the trust fund of the Eliza F. Buist trust, as it appears of that date in the returns of Hugh B. Buist, trustee, in the probate office. The other payments made by Buist upon the mortgage were guardianship funds except the sum of $540, which had been obtained from,Mrs. Kittie Williams, mother of Mrs. Buist, in 1874. In Hugh B. Buist’s return, as trustee, to the probate court, appears this item: ‘1877, May . By amount paid Mrs. K. F. Williams, being money she paid on the place we live at, $540.’</p> <p>“John H. Williams, the grantor of the trust deed, died many years ago, leaving as his own heirs at law his sons, James W. Williams and R. G. Williams; a grandson, N. B. Davenport; a grandson, Emmett Williams; his grandchildren, Martha E. Williams, Eliza F. Williams and William A. Williams; the daughters having both died unmarried and childless. W. A. Williams died leaving as his heirs at law his widow, Willie C. Williams, and his • two sons, J. Hudson Williams and William A. Williams.</p> <p>“The defendants, J. Hudson Williams and W. A. Williams, Jr., sons of W. A. Williams, one of the original cestuis que trust, have set up the claim that, as the $540 and $318.70 payments made by Hugh B. Buist upon the Marshall mortgage were obtained by him from the trust estate, they are entitled as remaindermen to such proportion of the 82 1-10 acre tract as such payments bear to the original purchase price. The master in his report has sustained their contention and has found that the trust estate consists of $6,947.10, the amount received by Hugh B. Buist from Williams, trustee, plus $744.03, profits on the Piney Mountain land, $7,691.13, less $858.70, payments • out of trust fund, as above stated, of $540 and $318.70, net $6,832.43; he also finds that they are entitled to 23.35 per cent.' of the 82 1-10 acres by reason of the alleged diversion.</p> <p>“The plaintiff and the defendant, Hugh B. Buist, do not complain of the findings of the master as to the charge for profits on the Piney Mountain land; but they do object to' his findings that the cestuis que trustent are entitled to any part of the land; they insist that the corpus is $6,757.50, plus $744.03, $7,501.53, and that only; they contend, also, that the trust fund in the hands of the trustee upon the death of the life tenant, Eliza F. Buist, becomes a resulting trust, reverting to the estate of John H. Williams and descending to his heirs.</p> <p>“There are, therefore, two main questions to be decided by me. First. The proper construction of the trust deed; and, Second. The liability of the plaintiff, Eliza F. Buist, to account to the defendants, J. Hudson Williams and William A. Williams, for a proportionate part of the 82 1-10 acres.</p> <p>“As to the first question, I adopt the conclusion and reasoning of the master and hold that upon the death of Eliza F. Buist, childless, the corpus of the trust estate in the hands of the trustees will vest in the defendants, J. Hudson Williams and William A. Williams, or in the survivor of them.</p> <p>“Upon the second question I do not agree with the master, and hold that he erred in finding that the defendants are entitled to any interest at all in the 82 1-10 acre tract of land, other than as security for the trust estate. The effort is not simply to charge Mrs. Buist’s property with the diverted funds, but to hold her, as a qiiasi trustee, accountable to the trust estate for an interest in her land; this cannot be done unless it be made to appear: (1) That the trustee has committed a breach of trust in investing the trust funds in the manner complained of; (2) That the trust fund actually went into the property in which an interest is claimed; (3) That Mrs. Buist was a party to the breach of trust, or that she was a voluntary donee of the fund diverted.</p> <p>“The interest in the land must be fixed, if at all,- through the conduct of Mrs. Buist, which in law must constitute her a quasi trustee; it cannot be done by showing a breach of trust by the trustee; it cannot be worked out through his conduct as trustee alone. It must be worked out on the ground that Mrs. Buist is a quasi trustee.</p> <p>“The first step in this process is to show that the trustee, in making the payments of $318.70 on February 8th, 1S77, and $540 in May, 1877, committed a breach of trust; for if there has been no breach of trust on the part of the trustee, to the knowledge or voluntary benefit of Mrs. Buist, there can be no relation of trustee on the part of Mrs. Buist to the estate; nothing, of course, to charge her as trustee if the trustee has only done what he had a right to do and what he should have done.</p> <p>“Considering, then, these two payments separately, attention is first directed to that of $318.70 on February 8th, 1877.</p> <p>“When Hugh B. Buist qualified as trustee, on February 7th, 1877, he signed a bond to the probate judge of Green-ville county for $9,000, and Mrs. Buist signed the bond as his surety. The bond was to be secured in such manner as might be satisfactory to the probate judge; it was so provided in the order substituting Hugh B. Buist for James W. Williams as trustee. To further secure the bond Mrs. Buist, the life tenant of the trust fund, executed her mortgage upon the home place, and the bond thus secured was accepted by the-probate judge.</p> <p>“At this time there was $318.70 due by Mrs. Buist on the Marshall mortgage, which covered the home place and was, of course, senior to' the mortgage which she gave to secure the bond of the trustee. On February 8th, 1877, the day after Mrs. Buist had mortgaged the home place to secure the bond, the trustee, out of trust funds, paid off the Marshall mortgage; the balance due amounting to $318.70, had the mortgage itself marked satisfied on March 30th, 1877, and the record entered March 30th, 1878, a year later.</p> <p>“How this constituted a breach of trust on the part of the trustee it is difficult to conceive. Mrs. Buist was entitled to the income of the trust fund during her life, and the trust has had the benefit all these years of the satisfaction of the mortgage and the stopping of interest upon it.- She had already given her mortgage to secure the trustee’s bond, and the $318.70 was- fully protected by it. How well it has been protected is shown by the effort of the defendants- to renounce .the security afforded and- claim the land, because it is worth more than the fund. The payment of the Marshall mortgage increased to that extent the value o.f the- security to the trustee’s bond. There was no secrecy about the transaction; it appears boldly upon the returns of the trustee filed in the probate office. There has been no .loss, nor danger of loss,. from the time the payment was made. The transaction amounted simply to a loan by the trustee to Mrs. Buist, amply secured by her mortgage, so far as the cestuis qtie trustent were concerned. From the standpoint of business, sensible action and results, what' better investment of this $318.70 could the trustee have.made? If he had loaned it to some one else, and taken a mortgage, he would have collected the interest and paid it to Mrs. Buist, and .she would have paid it to the mortgagee of the Marshall mortgage. To avoid this unnecessary circumambulation the trustee pays off . the mortgage, relieves the home place of the mortgage, increases the security to his bond, and holds the mortgage on the home place as security for the loan. While the Buist mortgage is not directly to the trustee, it needs no authority to show . that upon his default this mortgage would enure to the benefit of the cestuis que trustent.</p> <p>“In Wallace v. McCullough, 1 Rich. Eq. 426, a marriage settlement gave the husband the interest and profits of certain property which belonged to his intended wife during coverture. He received in payment of certain - notes certain slaves; upon the sale by him of some of the slaves, and his threat to remove the others from the State, the executor of the trustee under the marriage settlement filed a bill claiming the negroes as part of the trust estate. The Court held as follows: ‘Nor can the Court attach a trust upon the negroes, received in lieu of the money, to any greater extent than to declare a lien on them and the rest of his property, until the defendant shall repay the money to the executors of the trustee, or secure the payment of the same, by instruments to be approved by the commissioners, and by the Court upon the same being reported. The defendant being entitled to the interest and profit of the fund,was entitled to borrow it from the trustee upon proper security, and make the most profitable use of it within his power. Resolved into its elements, the transaction which took place was substantially this, that the defendant borrowed the money from the trustee and with it bought the negroes from Wallace and Parham, and is entitled to the benefit of his bargain. His only obligation is to replace the money; but until he does this, or secures it being done, the negroes purchased must represent the fund employed.’</p> <p>“As to the $540 payment in May, 1877. This stands upon a different footing from the other payment. Prior to February 8th, 1877, at which time there was $518.70 due upon the Marshall mortgage, it appears that Mrs. Kittie F. Williams loaned, or advanced, or furnished, the $540 to Eliza E. Buist, with which she made a payment of that amount upon the Marshall mortgage. In May, 1877, the trustee paid Mrs. Williams out of the trust fund $540, to reimburse her for the money which she had furnished to Mrs. Buist. He so entered the payment as a credit item in his returns as trustee to the probate judge. It is now claimed by the defendants that this was a payment upon the purchase money of the 82 1-10 acre tract of land and gives them a right to follow it into a proportionate quantity of the land itself. The money was furnished by Mrs. Williams long before the trustee was appointed and went to discharge the mortgage upon Mrs. Buist’s property to the extent of the payment made them by Mrs. Buist. At the time it was paid back by the trustee to Mrs. Williams the Marshall mortgage had been paid in full and marked satisfied. At most, the advance by Mrs. Williams was a loan to Mrs. Buist, and when it was paid back to her the transaction amounted to a liquidation by the trustee of a debt due by Mrs. Buist to Mrs. Williams, which, at the time it was created, had no reference to the trust estate. Conceding that the payment to Mrs. Williams was a breach of trust, the most that the defendants can claim is that they thereby became subrogated to the rights of Mrs. Williams against Mrs. Buist, which, in the most favorable view of the case, will be the right of an equitable assignee to that much of the Marshall mortgage. This the defendants already have in the mortage which Mrs. Buist has given" to secure the trustee’s bond.</p> <p>“The testimony, however, does not show that Mrs. Buist was in any way a party to this alleged breach of trust, or that she ever knew of the payment by the trustee of her debt to Mrs. Williams. If not, it amounted simply to a voluntary payment by the trustee, for which Mrs. Buist is not in any way accountable.</p> <p>“But if Mrs. Buist knew of it, and directed the payment to her mother, in the situation of the parties it did not constitute a breach of trust. It was right that Mrs. Buist should pay her debts, and it was right that the trustee should aid her in this commendable purpose; it was right that the trustee should invest the trust fund, and Mrs. Buist’s mortgage securing the bond of the trustee was ample security for this constructive loan, as the results have amply shown.</p> <p>“Conceding, however, for the sake of argument, that, in the two payments under consideration, Buist, as trustee, committed a breach of trust; that Mrs. Buist was the conscious or voluntary beneficiary of such breach, and that the payments were in satisfaction pro tanto of the purchase money mortgage, as to these payments the only relief which the cestuis que trustcni are entitled to is to hold the home place as security for such sums; and this they already have in the mortgage given by Mrs. Buist to secure the bond of the trustee. If the trustee committed a breach of trust, and Mrs. Buist was the conscious or voluntary beneficiary towards the satisfaction pro tanto of the Marshall mortgage, then she is considered a trustee of this fund and her liability is determined in the same manner as if Buist, the trustee, had paid off out of trust funds a balance due on a mortgage existing at the time he became trustee. Would it be a reasonable proposition that a trustee, who, years before his appointment, had purchased land, must let the cestuis que trustent into part ownership of the land because he had paid off a balance due upon the mortgage with trust funds? When Mrs. Buist became quasi trustee (according to the contention of the defendants) she was the owner of the 82 1-10 acre tract of land. It had been bought by her guardian for her long before his appointment as trustee; he had made a good bargain for his ward, and his ward is entitled to all of the benefits of that bargain. These benefits accrued before the acts were committed which are claimed to be sufficient to constitute her a trustee. Is she to lose these benefits, or a proportionate part of them, because a part of the trust funds have gone towards satisfying a mortgage which was upon the land before the trusteeship could have been created? Would not the ends of justice be fully met by holding the land as security for the trust funds which thus indirectly entered into it? If the payment of the trust funds had been absolutely necessary to save the entire property from sacrifice, through foreclosure of the mortgage, there might be some reason in awarding to the trust estate an interest in the whole, which would have been entirely lost but for such diversion. .But there is no such showing in this case. For all that appears to the contrary, the mortgagee, who had waited four years, would not have forced the property to sale for a small balance due upon the mortgage. There cannot be claimed for the trust fund any greater interest than was actually accrued by reason of the diversion. The case might be different if a trustee, who could not buy otherwise, purchased a tract of land with trust funds and took title in his own name. There the trust fund would have enabled the trustee to acquire the whole title, and without which he would have had nothing. But the case is different where the trustee has already secured a valuable bargain and has paid off a small balance due on the purchase price with trust funds. That Mrs. Buist acquired a bargain is best shown by the effort of the defendants to hold an interest in the land rather than be satisfied with the amount of the trust funds. What right then have the cestuis que trustent to secure a proportionate share in Mrs. Buist’s bargain, acquired four years before the trust relation was created?</p> <p>“It will be noticed that in the case of Wallace v. McCullough, supra, the person sought to be held to the liability of a trustee was not the trustee named in the deed, but the life tenant of the trust, who had obtained a part of the trust fund from the trustee and invested it in slaves. Just as here, the person sought to be charged as trustee is Mrs. Buist, the life tenant of the trust fund, who indirectly had obtained the trust funds and invested them in a mortgage of her property. It is not as strong a case for the cestuis que trustent as if Mrs. Buist had with the diverted trust fund's bought certain land. Even then, according to the doctrine of the Wallace case, she would not have been held liable for the land, but only the land should be held as security for the trust fund invested in it.</p> <p>“The point seems also to be thoroughly settled against the contention of the defendants in the recent case of Green v. Green, 56 S. C. 193. In that case Mrs. Eucy Green was the life tenant of certain property; she insured the dwelling house and paid the premiums; the house was destroyed by fire and the insurance, $3,000, was paid to her; with it she purchased a junior lien upon other property, and afterwards, at foreclosure sale, bought it and paid for it with her own money.</p> <p>“The Court held that the life tenant was a trustee for the remaindermen; that the $3,000 insurance money was traced into the property purchased by Mrs. Green; that the transaction created a resulting trust and that the remaindermen could follow the fund into the land. As to the contention that the remaindermen were entitled to proportionate interest in the property itself the Court says: ‘And in reaching the conclusion that the proceeds arising from the sale of the brickyard place should only be considered as a security for the $3,000, we have depended upon our own convictions, under the proof of what was just and equitable between these parties litigant; and our views have been reinforced by the following cases and authorities: Matthews v. Heyward, 2 S. C. 245, where this Court quoted with approval this language from Lewin on Trusts and Trustees, 762: “When a trust fund is traced into land, and the fund constituted a part only of the money laid out in the purchase, the Court has usually given a lien merely on the land for the trust money and interest * * Meyers v. Meyers, 2d McC. Chan. 264, where the Court puts the view into these words: “A person may sometimes, by mixing trust funds with his own, subject himself to the loss of both, for it is his own fault if they have not been kept separate; but it does not appear to me that this is a case which will subject the defendant to the loss of all the property he has in his possession merely because he cannot show what part of it has been purchased with the proceeds of the trust estate.” Adams, Equity, page 143, where that author says: “In like manner, if an estate or fund has been changed by breach of trust, -the cestuis que trustent may, at his option, waive its restoration, and may attack and follow it in its altered form, e. g., if a trustee or executor purchase an estate with his trust money or assets, and the fact of his having done so be admitted or distinctly proved, the parties interested in the money may claim the estate; or, if the purchase be made partly out of the trust fund and partly out of the trustee’s own property, they may claim a lien for the amount misapplied.” ’ See, also, 2 Perry on Trusts, sec. 841; Denton v. Davies, 18 Vs. 499; Noble v. Andrews, 37 Conn. 346; Lane v. Dishton, Ambler 409; Lewis v. Madocks, 8 Ves. 150; Lewis v. Madocks, 17 Ves. 48; Price v. Blackmore, 6 Beav. 107; Scales v. Baker, 28 Beav. 91; Hopkins v. Conyers, E. R., 2 Eq. 545.</p> <p>“It is, therefore, ordered, adjudged and decreed, that all of the exceptions to the several reports of the master inconsistent with this decree be, and the same are hereby, overruled.</p> <p>“It is further ordered, adjudged and decreed, that the corpus of the trust estate in the hands of Hugh B. Buist, trustee, be, and the same is hereby, fixed at the sum of seven thousand, five hundred and one and 53-100 ($7,501.53) dollars; and that, upon the death of Eliza E. Buist, the said corpus be vested in the defendants, J. Hudson Williams and William A. Williams, or in the survivor of them.</p> <p>“This case having developed from the simple purpose of a substitution of securities, contemplated by the plaintiff, into a case against the trustee for an accounting, and plaintiff’s attorneys having announced their purpose of making other arrangements with reference to the substitution of the mortgage,</p> <p>“It is ordered, that the complaint, as to such substitution, be dismissed and that, under the circumstances, the defendant, Hugh B. Buist, as trustee, be, and he is hereby, authorized to pay the costs of this proceeding out of the trust estate.”</p> <p>Defendants, J. Hudson Williams, William A. Williams and Mrs. Willie C. Williams, appeal on the following exceptions :</p> <p>“It is submitted that his Honor, the presiding Judge, in granting said decree, erred in the following particulars:</p> <p>1. “In holding that the master erred in finding that the defendants, J. Hudson Williams and William A. Williams, had any interest in the 82 1-10 acre tract of land as a portion of the trust fund created by the deed of John H. Williams.</p> <p>2. “In holding that no portion of the 82 1-10 acre tract could be regarded as a part of the trust estate unless three things should coincide, namely: (a) That the trustee has committed a breach of trust in investing the trust funds in the manner complained of; (b) That the trust fund actually went into the property in which an interest is claimed; and (c) That Mrs. Buist was a party to the breach of trust, or that she was a voluntary donee of the fund diverted. It is submitted that the rule of law thus laid down is erroneous, the true doctrine being that where a trustee employs trust funds in paying for lands, the title to which he takes in his individual name or in the name of a third person, the cestuis qus trustent are entitled, at their election, either to hold the trustees accountable for the money so invested, or to accept the investment as made for the benefit of the trust estate. This option is exclusively given to the cestuis que trustsnt, who may follow the property into the hands of a third person, unless he be a purchaser for value without notice. The plaintiff cannot claim to be such purchaser in the present instance; therefore, that portion of the 82 1-10 acre tract of land which was bought with trust moneys should have been declared a part of the trust estate.</p> <p>3. “In failing to hold that, even if the erroneous doctrine so laid down were applicable to the present case, a part of the 82 1-10 acre tract should be regarded as a portion of the trust estate; it being submitted that all three of the conditions specified in said rule were clearly proved to exist.</p> <p>4. “In holding that a trust could be impressed upon the land only through the conduct of the plaintiff constituting her a quasi trustee; and that it could not be done through the conduct of the trustee in committing a breach of trust; it being submitted that it is the breach of trust by the trustee which gives the cestuis qus trustent their option to take the investment as a part of the trust estate, and not any act on the part of any third person in whose name the title to the land may happen to be taken.</p> <p>5. “In holding that if there has been no breach of trust on the part of the trustee, to the knowledge or voluntary benefit of the plaintiff, she cannot stand in the relation of trustee to the estate; it being submitted that this doctrine would be erroneous unless the plaintiff were a purchaser for value.</p> <p>6. “In holding that the payment by the trustee, H. B. Buist, of $318.70 on the Marshall mortgage, on February 8th, 1877, did not constitute a breach of trust; it being submitted that it was a direct investment of the trust fund in land, and that the title to such land was not taken in the trustee’s name, but in the name of his wife.</p> <p>7. “In holding that such transaction simply amounted to a loan to the plaintiff, the testimony showing conclusively that it was never so considered by any of the parties thereto.</p> <p>8. “In holding that the trustee’s' payment of $540 to Mrs. K. F. Williams, in May, 1877, stood upon a different footing from the payment of $318.70; it being submitted that both payments accomplished precisely the same purpose, and should be given the same legal effect.</p> <p>9. “In holding that the cestuis qtie trust ent could, at most, claim to be subrogated to the rights of Mrs. Williams against the plaintiff; it being submitted that the $540 payment should have been considered a purchase of that proportion of the land for which it paid.</p> <p>10. “In holding that the testimony failed to show that the plaintiff knew of or was a party to such breach of trust, and that in such event it amounted simply to a voluntary payment by the trustee for his wife’s benefit, for which she was not accountable; it being submitted that it is not necessary to prove the wife’s knowledge of or participation in a breach of trust for her benefit in order to afford relief to those injured by such breach of trust.</p> <p>11. “In holding that even if the plaintiff directed the trustee to pay the money to her mother, Mrs. Williams, such payment would not constitute a breach of trust, inasmuch as it was the plaintiff’s duty to pay her debts; it being submitted that it was not her duty to take trust funds to pay her debts, and it was not the duty of the trustee to assist her in doing so.</p> <p>12. “In holding that the only relief to which the cestuis que trust ent were entitled was to hold the 82 1-10 acre tract as security for the two sums of trust money used in its payment; it being submitted that the cestuis que trustent have the option of regarding the investment of trust funds as for the benefit of the trust estate, and the right to claim not merely a lien on the land, but the land itself, because it was paid for with trust moneys.</p> <p>13. “In holding that the trustee had made a good bargain for his ward, by the purchase of said land, and that the ward was entitled to all the benefits of that bargain; it being submitted that there is no more justice in allowing the plaintiff to reap all the benefits of the increase in value of the land than there would be in allowing the trust estate to reap all the benefits therefrom. The guardianship moneys and the trust'moneys were used in different proportions in buying the land; both funds should share the profits in exactly the same proportions.</p> <p>14. “In holding that where a trustee, who had no individual means, should purchase land with trust funds and take the title in his own name, the cestuis que trustent would have a right to follow the fund into the land; but that if the trustee had enough money of his own to make a partial payment,-and only used enough of the trust funds to pay the balance of the purchase price, the cestuis que trustent would have no such right. It is submitted that there is no legal foundation for any such distinction; that the two cases supposed differ in degree only, and not in kind, and that the same rule should be applied to each.</p> <p>15. “In holding that the point in question seems decided against the cestuis que trustent by the case of Green v. Green, 56 S. C. 193; it being submitted that the trust considered in that case was implied, while that in the present case is express. Moreover, the principle for which the appellants here contend was fully established in the Green case.</p> <p>16. “In overruling the appellants’ exceptions to the .master’s two reports.</p> <p>■ 17. “In decreeing that the corpus of the trust estate now in the hands of Hugh B. Buist, trustee, was $7,501.53; it being submitted that he should have found it to be as follows: Amount received from James W. Williams, trus-’ tee, $6,757.50, plus $644.03 profits in Piney Mountain lands; $7,401.53, less $858.70, paid on purchase price of the 82 1-10 acre tract, $6,542.83; plus $7,137.00, increase in value of said land, $13,679.83; plus $2,481.00, increase in value of the Burgess tract, $16,160.83; and, also, .2069 of the 82 1-10 acre tract of land.</p> <p>18. “In ordering the trustee to pay the costs of the case out of the trust estate; it being submitted that the litigation has been rendere# necessary by the trustee’s repeated breaches of trust, and that he should properly be compelled to pay the costs from his own pocket.</p> <p>19. “In failing to hold that the present value of the Piney Mountain land is $9,425.00, and that the trustee should be charged with $7,177.00, being the increase in value over the price, $2,288.00, for which he sold them, the testimony of the trustee being that he appropriated the proceeds of sale to his own use; and it being submitted that a sale of the lands for the purpose of misappropriating the funds derived therefrom was not within the powers delegated to the trustee under the deed of John H. Williams, and constituted a breach of trust.</p> <p>20. “In failing to hold that the present value of the Burgess tract is $4,995.00, and that the trustee should be charged with, $2,481.00, being the increase in value over the price, $2,514.00, for which he sold it; the testimony of the trustee being that he appropriated the proceeds of sale to his own use; and it being submitted that a sale of the lands for the purpose of misappropriating the funds derived therefrom was not within the powers delegated to the trustee under the deed of John H. Williams, and constituted a breach of trust.</p> <p>21. “In failing to hold that the trustee’s payment of $318.70 on the Marshall mortgage on February 8, 1877, ;and his payment of $540 to Mrs. K. F. Williams in May, 1877, constituted investments of trust funds aggregating $858.70 in the 82 1-10 acre tract of land; and that the cestuis que trustent having signified their acceptance of such investments for the benefit of the trust estate, twenty and sixty-nine hundredths per cent. (.2069) of said 82 1-10 acre- tract of land now belongs to said trust estate.</p> <p>22. “In failing to. hold that the defendant, Hugh B. Buist, was liable for the sum of $16,160.83, which now is or should be in his hands as trustee, and that if he should fail upon the plaintiff’s death to pay over said sum to the remaindermen entitled thermo, the plaintiff’s interest, to wit, 79 31-100 per cent. (.7931) of the value of the 82 1-10 acre tract of land, should be. subjected to. the payment of said sum to the extent of $13,928.00, being the aggregate sum secured by two bonds executed by Hugh B. Buist and Eliza E. Buist to the probate judge of Greenville county, and his successors in office, and by the two mortgages executed by the said Eliza F. Buist to said probate judge in connection with said bonds, which mortgages cover the said 82 1-10 acre tract of land.”</p> <p>The plaintiff, Eliza F. Buist, and the defendant, Hugh B. Buist, except to the decree on the following grounds:</p> <p>I. “His Honor erred in holding as follows: ‘Upon the death of Eliza F. Buist, childless, the corpus of the trust estate in the hands of the trustee will vest in the defendants, J. Hudson Williams and W. A. Williams, or the survivor of them;’ and also in holding: ‘That upon the death of Eliza F. Buist the said corpus be vested in the defendants, J. Hudson Williams and W. A. Williams, or the survivor of them.’ Specifications: His Honor should have held that upon the death of Eliza F. Buist her share of the trust fund will become intestate property of John H. Williams, or a resulting trust in favor of said grantor.</p> <p>II. “That the presiding Judge erred in not sustaining the first exception to the master’s report, which was as follows: The master erred in finding as follows: ‘The intention and desire of the grantor was to part with his whole estate in the land and to convey it for the benefit of his three grandchildren, as payment for the release on their part of certain claims which they held against him. In other words, there was a valuable consideration paid to him by these grandchildren alone. No other relatives of the grantor contributed toward the payment of this consideration, for the claim was held by these three grandchildren and by none of his other relatives. Clearly, then, this conveyance was exclusively for the benefit of these three grandchildren and their issue, and not for the benefit of the grantor’s other relatives, so long as any of these three grandchildren or their issue should be in existence.’ Specifications: (1) The. main consideration of the trust deed was natural love and affection; the valuable consideration, to wit, a relinquishment of a certain claim, being subsidiary thereto and insignificant in value. (2) The conveyance was not for the benefit of the three grandchildren and their issue, except upon the terms stated in the deed applicable to the issue, respectively, of the three grandchildren. (3) The conveyance was for the benefit of the issue of said grandchildren only in the event that any one of them left issue surviving him or her.</p> <p>III. “That the presiding Judge erred in not sustaining the second exception to the master’s report, which was as follows: ‘The master erred in finding that upon the death of the grandchildren the land was to go to the issue absolutely, free from all trusts; whereas, he should have found that the trusts declared in the deed are as follows: (1) For the sole and separate use of the said grandchildren for and during their natural lives. (2) At the death of any one of them his or her share should go to the issue of such one dying. (3) If either of the grandchildren should die leaving no issue, such share should go to the survivor or survivors of said grandchildren. (4) In case all three of the grandchildren should die without leaving issue, then over to his four children named.’</p> <p>IV. “That the presiding Judge erred in not sustaining the third exception to the master’s report, which was as follows: ‘That the master erred in finding that the land was not to revert to the grantor’s estate, or to go to any of his other relatives, unless all three of his said grandchildren should die without leaving issue surviving them; for the reason that the trust deed declares that the issue of a grandchild should only take the share of their parent; and in the condition which has arisen the issue of W. A. Williams are not entitled to take, under the description of survivor or survivors “of my said grandchildren.” Elizabeth Williams died without issue ; her share devolved equally upon W. A. Williams and Eliza E. Buist; W. A. Williams died leaving two children; his share devolved upon said children; Eliza E. Buist will die without issue, and under the terms of the deed her share, being limited over to the survivor or survivors “of my three said grandchildren,” there being no such survivor, becomes intestate property or a resulting trust in favor of the grantor.’ „</p> <p>V. “That the presiding Judge erred in not sustaining the fourth exception to the master’s report, which was as follows: ‘The master erred in finding that upon the death of Eliza E. Buist her share of the trust fund, free from all trusts and limitations, will go to the surviving issue of the grandchildren, J. Hudson Williams and William A. Williams, or, if either of them be not living, to the surviving one; for the reason stated in the preceding exception, that upon the death of Eliza E. Buist her share of the trust fund will become intestate property of John H. Williams, or a resulting trust in favor of said grantor.’</p> <p>VI. “That the presiding Judge erred in not sustaining the fifth exception to the master’s report, which was as follows: ‘That the master erred in finding that the intention of the grantor was to convey the trust estate to his three said grandchildren; and to the issue of any one of them; for the reason that the effect of such holding is to create cross remainders in a deed, which cannot be done; the rule being that cross remainders may be implied in a will if the intention of the testator be clear, but that they can never be implied in a deed.’</p> <p>VII. “That the presiding Judge erred in not sustáining the sixth exception to the master’s report, which was as follows: ‘The master erred in finding that the grantor did not intend to die intestate, as to any portion of his estate; for the reason that the grantor’s intention must be ascertained by the words used; that the circumstances have created a condition of things not provided for in the deed, the necessary effect of which is that upon the death of Eliza E. Buist her share becomes intestate property by way of a resulting trust in favor of the grantor.’</p> <p>VIII. “That the presiding Judge erred in not sustaining the seventh exception to the master’s report, which was as follows: ‘That the master erred in finding that in no possible event can any part of the trust estate revert to the heirs of Eliza E. Buist, as an heir of, the grantor, for the reason that a resulting trust would not be created only upon her death without issue; for the reason that the share of. Eliza E. Buist will become intestate property of John H. Williams, distributable among his heirs, one of whom is the said Eliza F. Buist.’ ”</p> <p>cite: The cestui que trustent are not entitled to a pro rata share in land on which mortgage was paid in part by trust fund: 1 Rich. Eq. 426; 56 S. C. 232; 2 Perry on Trusts, secs. 857, 842; 37 Ves. 49; 8 Ves. 150’; Lewini on Trusts 762; Adams Equity 142; 18 Ves. 500; 59 S. C. 70¡; 8 S. C. 87. Trustee should not be charged with present value of land bought and sold or of land sold under the trust deed: 25 S. 'C. 2391; 2 Perry on Trusts, sec. 783; 12 Rich. Eq. 254; 28 Ency. 1001, 1029; 2 gtrob. Eq. 162; Rich Eq. 369; 3 S. C. 77; 2 MeC. Ch. 267. Defendant-appellants invoke the doctrine of cross-remainders: 32 S. C. 563; 24 Ency. 415; 32 S. C. 563; 4 Rich. Eq. 262.</p> <p>cite: Plave the remainder-men any interest in the land of which the trust fund paid the mortgage in part? 2 S. C. 239; 3 How. 401; 45 Am. D. 642; 29 Id. 539; 44 Am. St. R. 820; Rich. Eq. Cas. 172; 2 Mel. Eq. 217; 24 S. C. 183; 7 S. C. 185; 45 Am. Dec. 642; 25 S. C. 35;-4-Rich. Eq. 165; 1 Hill Ch. 354; 6 S. C. 159; 13 Rich. Eq. 269. To whom will trust fund go on plaintiff’s death? 5 Ency. 1086; 30 Ency. 704; Chev. Eq. 80.</p>

<p>1. Real Property — Evidence—Declarations—Hearsay.—A former owner and grantor may testify, on behalf of his subsequent grantee, as to the location of a house built by his grantor and of a fence and such evidence is neither a self-serving declaration nor hearsay.</p> <p>2. Evidence — Compromise.—Where evidence of the declarations of an owner in possession are tendered and ruled out on ground that witness says he was trying to get the parties to compromise their differences when the statement was made, and such was not the fait, the remedy of the aggrieved party is to inform the Court that the statement is incorrect.</p> <p>3. Ibid. — Waiver.—A deposition taken in another independent case is not admissible as the declaration of a deceased surveyor unless the declarations are proved by competent evidence. That appellant introduced the whole deposition after admission of part cannot he considered a waiver of his objection.</p> <p>4. Exceptions to evidence not objected to below are not considered.</p>

Before Klugi-i, J., Fairfield, July, 1909. Action by Elizabeth Elder against Simon McIntosh, Patsy McIntosh et ah, in probate court for dower.

Before Gage, J., Bamberg, May, 1910. Action by Flossie McMillan et al. against Clarence B. Hughes ét al. From Circuit decree, defendant, C. M. McMillan, appeals. pite: The word “heirs” is necessary to create a fee simple estate by deed: 1 Kent. 4 to 6; 74 S. C. 428; 51 S. C. 557; 2 N. & McC. 383; 16 N. J. Bq. 189; 78 S. C. 191; 32 .S. C, 78; 39 S. C. 18; Wilson v. Watkins, 48.S. C.; 5 B. C. 709; 26 S. C. 293; 83 S. C. 257; 27 Ency. 512; 30 N.. J. E. 505.

<p>Before Gary, J., Sumter, 1909.</p> <p>Proceedings in General Sessions to estreat recognizance in case of State against Johnnie Serious. The surety, H. T. Edens, appeals on the following exceptions, argtied:</p> <p>2. “That his Honor erred in overruling the return in that it was shown that there was no showing or proof by testimony, record or otherwise, that the principal Serious, had failed, to appear for sentence, and that he had been called at the door, or that a bench warrant had been issued for his arrest, or that there was any return of the sheriff showing that any such warrant had been served or attempted to be served on him, or left at his residence, or left for service, or that such search had been made for him and that he could not be found; nor was there any sufficient description of any offense, or any showing that the principal had been let to bail in pursuance of the order of an officer having authority to do so.</p> <p>5. “That his Honor, Judge R. W. Memminger, and Mr. Justice Davis, erred in ordering the bond estreated, and confirming the judgment thereon respectfully, in that the indictment upon which the defendant was tried, did not allege nor was it proved that he had been unable to comply with the requisitions of the statute, or that he had denied that he was the father of the child, therefore, there was no issue raised for trial by the jury, and the verdict and judgment thereon were a nullity, and there was nothing for the defendant to appear for or to answer to.</p> <p>6. “That the Court of General Sessions did not have jurisdiction to try the offense alleged in the indictment, in that it appeared that the defendant had been arrested by Magistrate Reese and brought before him, and there the woman had declared on oath the father of the child; nor did it appear that the said defendant had evaded or resisted the warrant so issued, nor had the said warrant been returned to the clerk of the Court of General Sessions with a special note thereon by way of return, on oath, on which an indictment could have been given out, and therefore the Court of General Sessions had no jurisdiction of the cause, and the appearance bond was of no effect or force, and the defend- ‘ ant was not bound thereby to have appeared, nor the surety liable for his failure to appear.</p> <p>7. “That his Honor, Judge Memminger, erred in confirming the judgment, in that it did not appear that every person bound by the recognizance had been served with the notice to appear and show cause why the same should not be estreated.</p> <p>8. “That his Honor, Judge Memminger, erred in confirming the judgment upon the recognizance, in that it appeared that the State had been guilty of laches in instituímg a proceeding to estreat the bond, and in that it appeared from the showing that in all likelihood the defendant Serious was dead, and in that it did not appear that any intentional failure to appear had been- made on the part of the defendant Serious, and that his failure to appear was excusable.”</p> <p>cites: Bxecution against property of defendant in bastardy only obtains when he fails to give bond: 38 S. C. 363. Presumptions awe in favor of proper proceeding: 34 Cyc. 569. Surety is liable on breach: 19 S. C. 383. Judgment for maintaining a bastard is not on a debt: 30 S. C. 363. •</p>

Before Wirson, J., Greenwood, Fall term, 1910. Action by American Type Founders against The Greenwood Printing Company, in court of Magistrate W. H. Kerr. From Circuit order, affirming magistrate’s judgment, plaintiff appeals. cite: Proof necessary to establish partnership as to creditors: 9 Ency. Ev. 553; 83 Am. Dec. 61; 75 Am.

Before Gary, J., Sumter, April, 1909. Action by E. A. Lowry against Atlantic Coast Line Railroad Company. Plaintiff-appeals. cites: What terminal carrier must show to rebut presumption of loss by it: 3 Hutch, on Car. 1591. Presumption is terminal carrier caused the loss: 6 Cyc. 491; 66 S. C. 477; 76 S. C. 30; 78 S. C. 81. Messrs.

<p>1. Breach op Trust. — Whether an agreement to divide money found is illegal depends on the circumstances attending the finding.</p> <p>2. Ibid. — One who obtains the money or property of another under a trust created for an unlawful purpose and fraudulently appropriates it to his own use is guilty of a crime.</p> <p>3. Larceny. — Where the property of another is obtained by trick, artifice or fraud with intent to steal it is a trespass ob imtio, and if it is afterwards fraudulently appropriated, it is indictable as larceny at common law.</p> <p>4. New Triad — Charge.—Where the charge is too favorable to appellant and on this point is erroneous, the verdict should not be set aside on ground that jury disregarded the instructions of the Court where the verdict can be based on any view of the evidence which would make it accord with the charge.</p> <p>5. Rehearing refused.</p>

Before Wiuson, J., Greenwood, October, 1910. Action by Hester Hutchinson, Whit Hutchinson and Maggie Means against John F. Turner.

Before Wirson, J., Laurens, November, 1910. Proceeding to set. aside a sale in case of Lizzie Farrow individually and as administratrix against Broadus Farrow et al., in probate court.

<p>Before SeasE, J., Sumter, December, 1909.</p> <p>Action by R. E. McElveen, administrator, against C. E. King. Erom Circuit decree, defendant appeals.</p> <p>cites: After declarations are not admissible: Rice Eq. 174; 9 Rich. 53; 43 S. C. 380; Harp. 376; 1 Bail. 113; 22 S. C. 360; 38 S. C. 355; 1 Hill Ch. 10; 4 Rich. 433; 7 Rich. Eq. 18; 34 S. C. 333. Conditions or restrictions to a gift must be made at time: 2 McC. Ch. 133; 34 Bail.Eq. 144. Presumptions from relationship: 10 Rich. Eq. 134; 1 Strob. L. 553; 3 S. C. 136; 6 S. C. 316; 34 S. C. 383; 48 S. C. 469; 17 S. C. 569; 18 S. C. 607; 14 S. C. 569; 9 Rich. Eq. 554. Presumption from possession of chattel: 2 Bail. 590; 39 S. C. 597; 4 Strob. 393; 3 Rich. 545. Presumption from possession of check endorsed in blank: 1 Strob. 303; 38 S. C. 148; Chitty on Bills, 196, 330; 36 L. R. A. 571; 4 Ency. Ev. 330; 3 Id. 535; 107 U. S. 603; 36 D. R. A. 570; 55 L. R. A. 155; 1 Green Ev. 38.</p> <p>cites: Degree of proof: 6 Ene. Ev. 220, 206. Gifts betzveen persons in confidential relations: 14 Ency. 1011, 1014. After declarations: 38 S. C. 279; 28 S. C. 362; Harp. 374; 1 Bail. 113 ; 1 Hill Eq. 13'; 6 Rich. 309. Husband cannot testify as to transaction with deceased wife: 47 S. C. 488; 51 S. C. 499.</p> <p>The opinion in this case was filed October 27, 1910, but remittitur held up on petition for rehearing until</p>

<p>Before Memminger, J., Hampton, October, 1910.</p> <p>Action by R. J. Simmons against J. G. Mason and R. R. Mason in court of A. R. Youmans, magistrate. From order granting new trial, plaintiff appeals.</p> <p>cites: The kind of evidence necessary to warrant a new trial on after-discovered evidence: 1 Bay 264; 10 S. C. 313; 15 S. C. 547; 16 S. C. 123; 54 S. E. 661; 69 S. E. 97.</p>

<p>1. Water Contracts. — The Paris Mountain Water Company cannot under its contract to furnish water at one place require payment of water rent due for water furnished at another time and place, as a condition precedent to furnishing water under the contract.</p> <p>' 2. Mandamus. — Findings by the Circuit Court in mandamus proceeding is conclusive on appeal if there is any evidence to support them.</p>

<p>1. Pleadings — Copartnership.—After answer on merits and trial entered into, defendants cannot on motion of nonsuit object that there was no formal allegations in the complaint of defendants’ copartnership.</p> <p>2. Evidence — Ibid.—In suit for possession of personal property under chattel mortgage, admission in evidence of the mortgage reciting the partnership is proof thereof.</p> <p>S. Mortgages.- — A chattel mortgage given to secure “any further sum of money which may be due and owing at any time during the current year” held to secure a balance of an account for the previous year.</p> <p>4. Appeal. — Admission of parol evidence as to the intention of the parties to include the balance of a past due account, in the mortgage and submission of this issue to the jury, is too favorable to appellant and not ground for appeal.</p> <p>5-. Payment. — An agreement to accept a less sum than amount due on an account as satisfaction for the whole not supported by any consideration is of no effect and is a payment pro tanto only.</p>

<p>1. Deposition de bene esse. — Under the facts and. circumstances surrounding the transaction, the refusal of a motion to suppress a deposition on the ground that its taking was noticed too late, is sustained.</p> <p>2. Carrier — Jurisdiction—Federal Statute. — An- action against an initial carrier for negligent delay in transporting vegetables is not required by the Carmack amendment (34 Stat.U. S. at Large, 594) to be tried in the Federal Court or before the Interstate Commerce Commission.</p> <p>3. Nonsuit on ground that there was no proof of unreasonable delay in transportation nor of date of arrival held to have been properly refused.</p> <p>4. Words and Phrases. — The word “received” held to have been used by the witnesses in the sense of “arrive.”</p> <p>5. Pleadings — Charge—Carrier.—It is not error to refuse to instruct the jury that a railroad company is not required to notify consignee of the arrival of freight, or that a provision in the bill of lading limiting the time for filing claims for damages or loss is binding, where neither is alleged in the answer.</p>

<p>Before Gagr, J., Calhoun, January, 1910.</p> <p>Action, 'by John Alexander against D. M. Able and F. F. Hill. Defendants appeal.</p> <p>Messrs. Buyck & Mann cite: Oppression defined: 14 Fed. 597. A distress to be illegal should be both unreasonable and excessive: Code 1902, 2434; 9 Eng. C. L. R. 255; 22 Id. 281; 60 Id. 427; 51 S. C. 217.</p> <p>cite: Illness of counsel: 79 S. C. 85; 84 S. C. 574; 80 S. C. 335; 78 S. C. 556; 79 S. C. 85. Plaintiff entitled to compensatory damages: 62 S. C. 383; 82 S. C. 456. Issue is, was the levy a reasonable amount to pay the rent: 45 At. 537; 21 Pa. Sup. Gt. 635. Unreasonable and excessive are synonymous: 21 Pa. S. Ct. 635; 7 C. & P. 59; 80 S. C. 49; 82 S. C. 456; 67 S. C. 539; 51 S, C. 217.</p>

Before Shipp, J., Oconee, March term, 1909. Action by James Brock and! Charles Cox against J. J. Haley & Co., James Mason and W. M. Kay. Defendants appeal. cite: Gaines had a right to lien for supplies: 21 S. C. 51; 15 S. C. 551; 54 S. C. 288. Gaines had a vested interest in the crop planted on the land: 7 How. 251; 10 S. C. 452; 8 Ency. 312. Plaintiff is estopped from maintaining this action: 10 S. C. 463. Termination of tenancy: 24 Cyc. 1028.

Before Gage, J., Aiken, October, 1909. Action by C. B. LaFitte against the McNeel Marble Co.:, R. W. Dodgen et al., intervenors.

<p>Before Wilson, J., Edgefield', October term, 1909.</p> <p>Action by W. M. Leppard against Western Union Telegraph Go. Defendant appeals.</p> <p>cite: Amount paid for transmission of message establishes the relation between the parties and cannot be recovered: 70 S. €. 83; 74 S’. C. 491; 45 S. C. 373. Presumption of negligence may be rebutted: 69 S. C. 549; Jones on Tel. Cas., sec. 312; 5 S. C. 377; 19 S. C.-81. Plaintiff must show facts from ivhich mental suffering would ordinarily arise: 73 S. C. 382, 525.</p> <p>cite: Delay in delivery raises a presumption of negligence: 69 S. C. 545; 70 S. C. 423. Upon failure to find addressee carrier should notify sender: 67 L. R. A. 153.- The agent receiving the message over the phone was carrier’s agent: 82 S. C. 247; 75 S. C. 182. Proof of mental anguish: 69 S. C. 537. What acts warrant sending issue of wilfulness to jury: 84 S. C. 67, 155.</p>

<p>Before Gary, J., Greenville, September term, 1910.</p> <p>cite: Rights of a man who has been threatened: 48 So. 258; 6 So. 482; 12 Pac. 783; Clark Cr. B. 141; 155 U. S. 271. What acts will bar plea of self-defense: 21 Cyc. 807; 25 Fncy. 266; Clark Cr. B. 187; 24 S. C. 285; 33 S. C. 594; 68 S. C. 133; 75 S. C. 510; 78 S. C. 96; 60 Ala. 26; 85 S. C. 102; 55 S. C. 36. The choice of paths: 1 Bish. Cr. B., sec. 847. One on his own premises is not bound to retreat when attacked: 79 S. C. 144; 72 S. C. 199. The request as to reasonable doubt is not covered by the charge: 38 S. C. 333; 66 S. C. 454; 76 S. C. 91; 78 S. C. 101; 79 S. C. 127.</p>

<p>Before Memminger, J., Clarendon, June, 1910.</p> <p>Indictment against Willie Bethune for murder. After sentence and appeal, on being called to say why a new day should not be assigned for execution of sentence, he said he Avas then insane. This issue was submitted to a jury in the Court of General Sessions, and upon their finding that he was sane a new day was set for his execution. He now appeals from the trial of this issue on the following exceptions :</p> <p>1st. “That his Honor erred in not explaining to the defendant the indictment and the nature of the offense of which defendant had been convicted and ascertaining in the proper manner if the defendant understood the same before compelling him to be arraigned for resentence.</p> <p>2d. “That his Honor erred in ordering the defendant to submit the question of his then sanity to the jury in attendance upon the regular term of Court of General Sessions for Clarendon county, in that the said jury had been summoned to try criminal cases and civil cases by consent, and that the question of defendant’s insanity Avas improperly submitted to said jury over the protest of his counsel, in that such question was not one of criminal guilt or involving a trial of the facts constituting a criminal offense, nor an action civil in its nature, and should have been referred to a commission in lunacy to pass upon the sanity of defendant and to have reported the conclusion of such commission to the Court.</p> <p>3d. “That his Honor erred in overruling the motion of defendant’s counsel that the question of defendant’s sanity or insanity be referred to a board of physicians for determination, and in ordering that .that question be submitted to the jury then in attendance upon the Court of General Sessions; for that is not the proper manner to determine the question of the sanity of one called upon to receive sentence, but such question should have been referred to the judge of the court of probate, an order appointing a commission of three, appointed by the court of probate, and a jury of twenty-four summoned, to try the question of the sanity or insanity of the defendant.</p> <p>4th. “That his Honor erred in forcing the defendant to submit the question of his sanity to a jury in said Court, in that his counsel moved that the same b.e referred to. a board of examining physicians, it was the duty of his Honor to have referred the said question to the probate judge for determination, in accordance with the terms of the act of the General Assembly entitled ‘An act to regulate the practice with reference to the appointment of a committee for persons non compos mentis,’ approved 26th February. 1910, in that the defendant was denied by the order of his Honor the remedy provided by the terms of the said act.</p> <p>. 5th. “That his Honor erred in forcing the defendant to submit the question of his then sanity to the said jury, in that there is no provision of law of force in this State authorizing the question of a convicted defendant’s sanity to be determined in the manner here employed, and that such manner is and cannot be reasonably calculated to ascertain the truth of sanity or insanity of a defendant, and that his Honor should have had the defendant examined by physicians.</p> <p>6th. “That his Honor erred in forcing the defendant to trial upon said question in said manner, in that the proper method, other than the method provided for in the act of 1910, is upon an examination by two or more physicians, under the direction of the probate court, such court having exclusive original jurisdiction of matters in lunacy, except where the defense of non compos mentis is made at trial upon the merits of the case.</p> <p>7th. “That the manner pursued by his Honor, over defendant’s counsel’s objection, deprived defendant of his life and liberty without due process of law, in that such manner is not reasonably calculated to ascertain with any degree of definiteness the true condition of the mind of a person or to afford a ground for the establishment of such condition with the precision ordinarily required in criminal procedure.</p> <p>8th. “That his Honor erred in submitting to the jury the following question: ‘Whether the mental condition of the defendant is such that he can understand the meaning of punishment, and whether he be now sane and a true verdict given according to the evidence, so help you God, whether he be now insane;’ in that the question ordered and permitted to be submitted was ‘whether he be now insane.’</p> <p>9th. “That his Honor erred in submitting the question to the jury, as follows: ‘Whether the mental condition of the prisoner at the bar is such that he can- understand the meaning of punishment and whether he be now sane, whether he be now insane;’ in that he should have- submitted to the jury (after having forced the defendant to trial) the following: Whether the defendant, by reason of a disease of the mind, is unable to understand the nature of the indictment upon which he was tried and convicted, his plea thereto and the verdict thereon, when explained to him by the Court, and is unable to comprehend his own condition in reference to such proceeding, and by reason thereof might make known to the Court, or his attorneys in charge of his defense, the facts within his knowledge, if any, which would show that judgment should not be pronounced against him, especially in view of the fact that his counsel had stated that the defendant was precluded from communicating to him facts relating to after-discovered evidence.</p> <p>10th. “That it appears by the record that his Honor did not submit the same oath to all of the jury, in that it is stated that while the jury was being empaneled that his Honor stated: T see that the Supreme Court says the prisoner has a right to plead that he was then insane, and so I have added to the oath according to their statement, whether he be insane. Just swear the others with that additional oath, Mr. Clerk;’ thereby depriving the defendant of a verdict or finding by the whole jury under the same oath.</p> <p>11th. “His Honor erred in ruling that the defendant had to establish his present insanity; in that the defendant having plead by his counsel his then insanity, as permitted by the order of the Supreme Court, it was incumbent upon the State to establish his sanity.</p> <p>12th. “That his Honor erred in asking the witness, Dr. Butler, the following: ‘When we called upon him this morning to hold up his right hand, and he held it up, and told him to put it down, and he put it down, do you think or not that .the man could understand that if he would be sentenced to death what it meant;’ in that the presiding Judge thereby stated as a matter of fact that the defendant had put up and put down his hand when told to do so, and thereby conveyed to the jury the impression that in the mind of the Court that constituted an inference or fact showing sanity in defendant, calculated to prejudice the minds of the. jury against the defendant by calling to their attention an act or acts of the defendant in the course of the trial.</p> <p>13th. “That his Honor erred in submitting to the jury the following question: ‘Is the defendant herein insane and incapable of understanding the meaning of punishment?’ In that his Honor added to the question authorized to be determined by the Supreme Court — that Court having permitted the defendant to interpose the question of his then insanity.</p> <p>14th. “That his Honor having submitted a question to the jury at the beginning of the trial, he erred in enlarging the question in his charge to include a knowledge of right from wrong; in that the defendant was not advised of the fact that he would have to meet any issue other than if he was at that time insane.</p> <p>l‘5th. “It is submitted that his Honor erred in charging the jury that the defendant must establish his insanity by the preponderance of the evidence, and that the defendant was presumed to be sane; in that it is incumbent upon the State' to establish in a proceeding of this kind the sanity of the' defendant beyond a reasonable doubt, for that if the defendant be insane he would be unable to establish a fact by any degree of proof, and his Honor erred in so ruling and forcing the defendant to open the case and offer evidence of the insanity of the defendant in advance of any evidence of his sanity.</p> <p>16th. “His Honor erred in applying the terms of section 2264 to the defendant’s case; in that that section relates by its terms to the proof required of a person on trial on the merits of the case being proved to be non compos mentis.</p> <p>17th “That his Honor erred in charging the jury as follows: Tí a man is simply feigning insane or not, that is all entirely for you upon the testimony. You have to take all that into consideration;’ in that his Honor thereby conveyed to the jury the idea that the defendant was feigning insanity, and invaded the province of the jury to determine the issue upon the fact, including the demeanor of the defendant, and such statement was in effect'stating that the testimony warranted the inference that the defendant was feigning insanity.</p> <p>18th. “That the verdict of the jury, and the judgment therepn, are unsupported by the testimony, and there is no testimony to support the same.”</p>

Before Watts, J., Charleston, November, Í910. Action by James M. S. Herbert, guardian, against C. W. Parham. Prom order overruling demurrer, defendant appeals. cite: Labelling bottles is not dangerous occupation: 86 S. C. 352; 39 S. C. 39; 66 S. C. 256; 69 S. C. 529; 72 S. C. 398; 75 S. C. 102.

<p>Carrier — Freight—Penalty—Jurisdiction.—On a cause of action arising in 1908 an action may be brought in proper county after nonsuit of the cause of action for penalty for failure to adjust claim for damages to freight for want of jurisdiction, joined with an action for damages.</p>

Before Wilson, J., Greenwood, December, 1910. Action by Jane Wilkie against Foster Murphy in Court of Magistrate W. G. Austin. From Circuit order affirming judgment of magistrate, defendant appeals. cites: This is a proceeding to enforce a statutory lein and magistrate has no jurisdiction: art. V, sec. 21; 60 S. C. 105; 13 Fncy. P. & P. 123; 14 S. C. 35; 15 S. C. 548; 28 Kan. 441; 52 S. C. 161. Magistrate can only divide crop in kind: 14 S. C. 35.

<p>Before Prince, J., Kershaw, March, 1910.</p> <p>Action by E. E. Whitaker st al. against C. H. Manson et al. Defendants appeal.</p> <p>cite: Rule XX, Cir. Ct., Code of Proc. 194-5; 76 S. C. 15, 189; 69 S. C. 53; 83 S. C. 13; 81 S. C. 354; 76 S. C. 189; 61 S. C. 351; 64 S. C. 338.</p>

<p>Before Wieson, J., Edgefield, October, 1909.</p> <p>Action by Bessie D. Smith and H. A. Smith against the Southern Ry. Co. Defendant appeals.</p> <p>cites: Violation of the stipulations on the mileage contract avoids it: 25 Pac. 733; 25 Ency. 1091; 15 111. App. 100; 53 Md. 201. Purchasing ticket for the wife violates the contract: 26 S. C. 96; 65 S.,C. 103; 25 Ency. 804; 56 L. R. A. 741; 44 Am. St. R. 95. Conductor properly lifted the mileage: 14 L. R. A., N. S. 368. There being, no contradiction of acts of conductor Court should have held there was no wilfulness: 133 N. Y. 622; 101 Mo. 93; 105 Mo. 399; 49 Am. & Eng. R. Cas. 390; 92 Ky. 345; 76 Mo. 80; 64 N. C. 235 ; 21 Fla. 700. There can be no recovery for humiliation: 14 E. R. A. 666. There was no evidence of wantonness: 62 S. C. 16; 73 S. C. 523; 61 S. C. 170; 64 S.' C. 491; 35 S. C. 501; 57 S. C. 254; 69 S. C..518. Purchaser is bound by the stipulations in the mileage book: Rap. & Mark. Dig. R. R. E. 1063; 26 S. C. 96. '</p> <p>cite: Punitive' damages may be awarded for ejecting a passenger: 71 S. C. 446; 69 S. C: 330; 64 S. C. 514; 3 S. C:- 580; 6 Cyc. 557; 100 Am. St. R. 261; 52 S. C. 323; 57 S. C. 418. Carrier is liable for mistakes and negligence of ticket agents: 82 S. C. 173; 75 S. C. 116; 58 S. C. 145; 37 S. C. 194; 76 Am. St. R. 639. Verbal inaccuracy in a charge is not harmful: 66 S. C. 35. Punitive damages are recoverable here: 69 S. C. 115, 338; 70 S. C. 115, 418.</p>

<p>Agricultural Lien — Claim and Delivery. — A sheriff, who has seized crops under an agricultural lien warrant, has no authority to return them to the owner on his bringing an action in claim and delivery for them 'and executing a bond in that proceeding.</p>

<p>Before Watts, J., Greenville, May, 1909.</p> <p>Action by Jerry Hall against Southern Railway Company. Plaintiff appeals.</p> <p>cite: Hutch, on Car., sec. 1412; 55 S. C. 391; 77 S. C. 434; 5 Ency. G24; 3 Thomp. Neg., sec. 2757; Shear. & Red. Neg., sec. 59; 83 S. C. 26; 85 S. C. 216; 83 S. C. 53; 72 S. C. 336; 7 L. R. A. (N. S.) 1076.</p>

Before Klugi-i, J., Marlboro. Action by Tilghman Lumber Company against A. J. Matheson. Defendant appeals. cite: The plaintiff having previously contended that defendant’s interest in the land zvas as mortgagee, it cannot now insist on the contrary: 25 U. S. 54; 11 Ency. 446. And this question is res judicata: 77 S. C. 493.

<p>Before Memminger, J., Richland. October, 1909.</p> <p>Action by E. N. Chisholm et al. against Carolina Agency Co., W. A. Clark et al. Defendants appeal.</p> <p>Messrs. Shand & Shand cite: Allegation that one stockholder dominated the meeting is not szifficient: 213 U. S. 450; 196 U. S.; Doctor v. Harrington; 73 S. C. 134. No cessation of business: 43 S. W. 748; 73 S. C. 135. It is duty of board of directors to site for default of treasurer: 69 N. Y. 164; 6 La. R. 30; 30 Fed. R. 302. Pailure to require bond of treasurer is not such negligence as entitles plaintiff to relief demanded: 3 Paige 232; 147 Pa. St. 152; 82 Ky. 374; 37 N. J. Eq. 356; 145 U. S. 132. Appointment of receiver should be used only as a dire resort: Miller v. Land Co., 53 S. C.; 3 Cook on Corp., sec. 863; 2 Id. 746; 105 Ala. 665; 37 Atl. R. 203; 23 Ency. 18, 19; 23 Ency. 1023; 73 S. C. 132; 6 Pom. Eq. 63-8; 28 S. E. R. 612; 1 Mor. Priv. Corp., secs. 281, 285; 37 At. R. 203. A receiver may be refused and the Court pass on the merits: 5 Rich. Eq. 342; 2 Cook on Corp., sec. 743; 3 Paige 222; 213 U. S. 435; 196 U. S. 519; 18 How. 331; 147 Penn. St. 141; 22 Hun. 150; 88 N. Y. 52; 37 N. Y. 318; 69 N. Y. 154.</p> <p>Messrs. Nelson, Nelson & Gettys and Prank G. Tomkpins cite: When the directors are the zvrongdoers and control the majority of the stock such action may be maintained: 48 S. C. 83; 53 S. C. 519; 60 S. C. 183; 66 S. C. 100; 82 S. C. 382. Receiver properly appointed: 23 Ency. 1022; 30 S. C. 204; Code 1902, 265.</p>

<p>1. Physician — Party.—A plaintiff suing for personal injuries is not required to submit to personal physical examination by disinterested physicians.</p> <p>2. Carrier — Passenger—Issues.—Under the evidence here, whether the plaintiff should have anticipated that waiting in a cold waiting room for five hours, whether any reasonable effort on her part would have enabled her to find accommodations elsewhere, whether she should have imposed on the carrier the burden of providing accommodations for so long a time, whether she should have taken a train making closer connection, are issues for the jury.</p> <p>3. Ibid. — Ibid.—Women.—The presence of a woman's menstrual period is a normal condition and must be taken notice of as such by carrier in providing accommodations for both sexes.</p> <p>4. Ibid. — Ibid.—Charge as to duty of carrier to passenger in its station waiting rooms and of duty of passenger to prevent damages from accommodations furnished held proper.</p> <p>5. Ibid. — Ibid.—A carrier owes the same degree of care to passengers in its waiting rooms as on its trains.</p>

Before MemmingSr, J., Richland, December, 1909. Action by Allen Woodward against Southern Railway. Defendant appeals. cites: Defendant’s duty to furnish only reasonably safe place: 51 S. C. 306. Evidence as to wife and children of servant is only admissible where punitive damages are proved: 39 S. C. 168; 53 S. C. 258; 60 S. C. 14; 102 U. S. 460; 20 A. & E. R. Cas. (N. S.) 632; 85 Am. St. R. 835.

<p>1. Reference — Appeal.—An order of reference is administrative, ordinarily discretionary and not appealable unless it deprives a party of a mode of trial to which he is entitled by law. This order is not appealable for the further reason that the objections now urged against it were not urged on Circuit.</p> <p>Mr. Justice Hydrick thinks the order erroneous because without the scope of the notice and in another case than the one the motion was made in, and further because the exceptions allege errors of commission.</p> <p>2. Rehearing refused.</p>

<p>1. Waiver. — Condemnation under the statute does not determine the right to compensation, but the amount only and the participation of landlord in selecting a condemnation jury is not a waiver of the decision of a proper tribunal on the disputed question of right, where steps are taken at once to protect his rights.</p> <p>2. Res Judicata — Ibid.—The order of the Circuit Court refusing to enjoin condemnation pendente lite, nor the order of this Court refusing to supersede such order can be regarded as an adjudication of the right to condemnation.</p> <p>3. Ihjuhctioh — Railroads.—Where the railroad commission has granted one road the right to cross the tracks of another upon certain conditions, it is error to enjoin the road to be crossed from interfering with such crossing until all conditions imposed by the commission have been met and to restrain it from protecting its rights to the possession of its tract by resort to the courts, and the road desiring to make the crossing is ordered to restore the original status.</p> <p>4. Ah ihjuhctioh should only preserve the status at its date and should not undertake to take property from the possession of one and put it in the possession of another, nor to deprive it of the right to protect its possession.</p>

<p>Before DeVore, J., Chesterfield, November, 1910.</p> <p>Action by Seaboard Air Line Railway against Atlantic Coast Line Railroad Company. Plaintiff appeals.</p>

<p>Before Watts, J., Chesterfield, December, 1910.</p> <p>Action by Town of Cheraw against Seaboard Air Line Railway. Defendant appeals.</p> <p>Mr. Stevenson cites: Indictment is remedy for nuisance: 49 S. C. 130; 1 Hill 365; 30 S. C. 539; 46 S. C. 327; 5 Rich. 590. One party cannot bring an action for another who alone is interested: 6 S. C. 184. Property should not be taken from one and put in possession of another by injunction: 27 S. C. 414; 4 S. C. 402. The Atlantic Coast Line has no right to enter town until it has complied with requirements of Railroad Commission: 139 U. S. 288. No irrepsalable right is obtained against the police pozver: Cool, on Con. Lim. 399, 396, 402; 111 U. S. 746; 67 111. 37; 88 111. 221; 97 U. S. 25; 97 U. S. 659 ; 101 U. S. 814; 59 N. Y. 92; 168 U. S. 488; 103 Mass. 70; 151 U. S. 556; 170 U. S. 57. No rights vest under a preliminary order until its terms are complied with: Cool. Con. Lim. 508; Elliott on R. R., secs. 1081, 1082; 159 Fa. 411; 151 U. S. 556.</p>

Before Gary, J., Lexington, June, 1910. Indictment against John Miller.

<p>Before Gage, J-, Anderson,-.</p> <p>Indictment against A. B. Fant. Defendant appeals.</p> <p>cites: Indictment should allege the liquor was stored and kept for unlawful ' use: 11 Ency. P. & P. 568;.23 Cyc. 240; 32 S. C. 123; 84 S. C. 543. The statute contravenes the State and Federal Constitutions: 68 S. C. 148. The acts must be shown to be within the terms of the act: 23 Cyc. 172; 87 S. C. 442.</p> <p>Oral argument.</p>

<p>Before Hydrick, J., Lancaster, October, 1908.</p> <p>Action by Eureka Cotton Mills against Western Union Telegraph Company. Defendant appeals.</p> <p>The English rule is that telegraph company is independent carrier: 87 Tenn. 554, 756; 11 S. W. 783; 4 L. R. A. 660; 30 L. R. A. 444; 62 S. W. 1119. Measure of damages: 78 S. C. 427. No interest should be allowed in actions in tort: 70 S. C. 83; 71 S. C. 386; 72 S. C. 516; 4 McC. 392.</p> <p>cite: Telegraph company is the agent of the sender: 27 Ency. 1092 and cases cited; 51 S. E. 290; 46 S. E. 826; 40 S. E. 815; 35 Pa. St. 298; 78 Am. Dec. 338; 40 Wis. 431; 27 Ency. 1093; 56 Am. Rep. 901; 29 Vt. 127; 1 Am. St. R. 357; 54 Md. 138; 39 Am. R. 359. Plaintiff was bound by the terms of the message as delivered: Bish. on Con., sec. 32S; 93 Am. Dec. 511. Measure of damages: 78 S. C. 428. Interest may be allowed as damages:.3 Suth. on Dam. 238, 174, 534, 677; 13 Cyc. 85, 88.</p>

<p>Waiver. — Jurisdictiox arising out of the statutory provisions relative to the place of trial pertain to the person and not the subject matter and may be waived by appearance and contest on the merits. Riddle v. Reese, S3 S. C., 198, overruled by Jenkins v. jBy., 84 S. C., 343.</p>

<p>Telegraph Companies — Mental Anguish. — The addressee of a telegram resident in a State which has no mental anguish statute may recover in this State under our statute for delay in delivering a telegram sent from this State to that, without reference to where the delay occurred.</p>

<p>Before Gage, J., Georgetown, June, 1910.</p> <p>Indictment against Willie Lucas and Moses Campbell. Lucas appeals.</p> <p>cites: Charge is on the facts: 47 S. C. 522; 49 S. C. 558; 28 S. C. 255; 5 S. C. 66; 15 S. C. 393; 19 S. C. 181; 51 S. C. 453; 38 S. C. 31.</p> <p>Oral argument.</p>

<p>The istjunctioit as determined by this Court on the former appeal is to restrain the defendant from discharging into the stream flowing through plaintiff’s lands tailings from the chlorinating process.</p>

Before Gage, J., Sumter, September, 1909. Action by Mark Reynolds against Margaret O. Price. Plaintiff appeals. cite: The act, secs. 2375-9 of Code, modifies existing law: 1 Jones on Mtg. 954; 81 Mo. 94; 158 Mo. 622. Tender should be kept good to avail: 17 S. C. 329; 20 S. C. 521; 116 N. C. 1; 33 R. R. A. 231.

Before Watts, J., Edgefield, March, 1910. Action by H. A. Smith against Southern Railway. Plaintiff appeals. cite: Conductor must heed reasonable explanation of passenger: 75 S. C. 16; 64 S. C. 514; 69 S. C. 327; 6 Cyc. 557: Punitive damages are recoverable for mental suffering apart from bodily injury: 52 S. C. 323; 57 S. C. 418. Principal is liable for the acts of his agent: 82 S. C. 173; 37 S. C. 194.

Before Gage, J., Anderson. Indictment -by the City of Anderson against Mamie Gist. From Circuit order affirming judgment of mayor, defendant appeals. cites: What is a bawdy house? Black’s Law Die. 124; 1 Words and Phrases 721-2; 9 Ency. 518-20; 1 Bov. Law Die. 163; 14 Cyc. 484; ■1 B'ish. Cr. L. 655; 20 Am. St. R. 407; 17 Am. St. R. 704. Messrs. Hood & Sullivan cite: The evidence tends to establish the guilt of defendant: 1 Dud. 346; 39 N. W. 89; 1 Bish. New Cr.

Before Gage, J., Georgetown, June, 1910. Proceedings to estreat recognizance against J. A. Baxter. Surety appeals. cites: Rule is insufficient: 25 111. 71; 16 111. 171; 43 Tex. 389; 19 Ency. P. &. P. 268, 309; 35 Cyc. 1152b. One process should not be tried on proceedings in another: 35 Cyc. 1158; 3 Grant 236. No appeal lies from rule: 13 S. C. 452.

Before B. H. Moss, Special Judge, Dorchester, Fall term, 1910. Indictment against John W. Pendarvis for murder. Defendant appeals on following exceptions: 1. “The record discloses> the following: During the empanelling of the jury West O. Hutto was examined upon his voir dire as follows: ‘His- Honor: Are you related by blood or marriage to- John Pendarvis or C. C. Wimberly? Juror: Not that I know of.

Before MrmmingRr, J., Richland, December, 1909. Action by E. E. Corry against City of Columbia in court of Magistrate Jas. H. Fowles. From Circuit order reversing judgment of magistrate, plaintiff appeals. cite: Party may recover for injury caused by small hole in sidewalk: 6 N. E. 632; 19 At. 912; 74 Mo. 480 ,' 49 Pac. 489; 82 At. 347; 53 N. E. 1058; 33 N. E. 27; 20 S. E. 355; 23 N. E. 518; Jones on Neg. of Mun. Corp. 189, 185, 176.

<p>Appeal. — Where it appears the appellant in a murder case presents matters not presented to the trial Court, this Court will overlook all irregularities and remand the case to the Circuit Court to report fully on all matters referred to in the record.</p>

<p>1. Principal and Agent-t-Delivery op Goods. — Goods consigned by a inanufactu'rer to its selling agent but kept in its warehouse subject • to the order of the agent is constructively delivered and the agent •has a lien on the goods for money advanced on them, but the agent is not entitled to the possession of the goods as against a receiver of the manufacturer, but is entitled to have his lien paid. Insolvency of the agent is good ground for revocation of agency.</p> <p>2. Rehearing refused.</p>

<p>Deeds — Easements—Conditions.—There is no evidence in this case of abandonment or extinguishment of the conditions in the habendum of a deed “To have, etc., subject to the condition that it shall never be built upon but always remain an open' space in front of my ■ house and also of his, as per diagram hereto attached.” Building other houses than dwellings on the lots facing the triangle is not pertinent to the issue.</p>

Before SeasE, J., .Orangeburg, June, 1910. Action by Alice Singletary against Seaboard Air Line Railway. Defendant appeals. cite: Evidence does not show the negligence alleged is the proximate cause of the injury: 35 S. C. 384; 81 S. C. 270; 72 S. C. 338; 19 L. R. A. 460; 35 S. E. R. 677. Special findings should precede the general verdict: Code of Proc., sec. 283-4; 20 Ency. P. & P. 299; 71 Mich. 391.

<p>1. Pleadings — Future Sales. — -A complaint alleging that a contract for the future sale of cotton was made with the bona fide intention of the parties at the time to deliver in kind states a good cause of action under the statute, the allegations are not inconsistent with the other facts alleged, nor is it necessary to allege evidentiary matter from which such intention may be inferred.</p> <p>2. Damages — Profits.-—The rule that the vendee is entitled to the difference as damages between the price of goods sold and the market price at time of delivery does not require the vendee to buy at time and place of delivery, but proof of the contract price and the market price at that time and place establish a basis for certain profits.</p>

Before Shipp, J., Greenville, May, 1909. Proceeding by Richard G. Stone against G. H. Mahon.