Volume 89 — South Carolina Reports

Before SeasE, J., Florence, November, 1910. Action by O. O. Graham against Atlantic Coast Dine Railroad Company. Defendant appeals. cites: Verdict is so excessive as to show some improper motive: 88 S. C. 388; 86 S. C. 529. cite: Master is liable for wrongful act of his employee zvithin the scope of his employment: 3 S..C. 1; 37 S. C. 377; 58 S. C. 143; 67 S. C. 395; 68 S. C. 94; 69 S. C. 133; 53 S. C. 213.

Before Gage, J., Berkeley, May, 1910. Action by Rebecca Haselden against Herbert D. Haselden, Atlantic Coast Lumber Corporation et al. The Circuit decree is: “This action is for the allotment of dower to the plaintiff, the widow of James H. Haselden, deceased. “The complaint charges also trespass by the defendant, Atlantic Coast Lumber Corporation, and demands -damages therefor. “The other defendants are the children of James H. Haselden- and the plaintiff. “These children,…

Before Watts, J., Hampton, April, 1910. Action by James M. Patterson against Western Union Telegraph Company in court of W. R. Brabham, magistrate. From order affirming judgment of magistrate, defendant appeals. cites: Measure of damages: 71 S. C. 29. cites: Issue of fact supported by any evidence is not reviewable here: 85 S. C. 196. D.elay in delivery presumes negligence: 77 S. C. 404.

<p>Specific Performance — Tender.—Where in a proceeding to revive a judgment, served on the heirs at law, of judgment debtor, it is agreed between the creditor and one heir in writing that her answer pleading payment should be withdrawn and that the judgment should be revived, the land sold thereunder, bought by the creditor for amount due on debt, and conveyed to this heir for life and then over upon payment of the amount due and interest, such heir remains in possession during her life and during this time makes tender, which is refused, the readiness of her remaindermen after her death to make good her tender vests the fee in them.</p>

Before Aldrich, J., Greenville, November term, 1909. Action by J. P. Murphy against Atlanta and Charlotte Air Line Railway. Plaintiff appeals. cites: Duty of master to furnish safe place includes a place to attend to call of nature: 34 Am. St. R. 135; 59 S. E. 1073; 69 S. C. 3S7. Appellant had the right to suppose Corn would obey his instructions: 81 S. C. 303; 45 S. W. 563.

Before Wieson, J., Greenwood, October, 1910. Proceeding to condemn by the Town of Greenwood against Belle Yoe. Defendant appeals on the following exceptions: I. “It is respectfully submitted that his Honor, Judge Wilson, erred in refusing to allow the appeal and grant the new trial asked for in this matter because it is submitted that the grounds of appeal were reasonably sufficient as is laid down by statute for the granting of new trials in matters of this kind.

Before SeasE, J., Calhoun, May term, 1910. Action by Wesley Robinson against the Town of St. Matthews. Defendant appeals. cites: No liability rests where the defect is an error of judgment: 28 Cyc. 1285-6, 1228. No liability for mental pain in such case: 40- S. C. 342; 70 S. C. 137. Mr. Hiott cites: Work should have been lighted: 28 Cyc. 1284. Plaintiff may recover for mental suffering connected with physical injury: 53 Vt. 183.

<p>1. Special Damages — Carrier.—A passenger cannot recover for failure of carrier to stop its train at his destination so that he could attend to business there without allegation and proof of notice to the carrier.</p> <p>2. Actual damages alleged and shown to be the result of a wilful tort may be recovered by a passenger on a complaint based on a wilful breach of duty.</p> <p>3. Evidence — Camuek—Damages.-—In a cause of action based on failure of the carrier to stop its train and not upon abusive language, it was not error to exclude from the consideration of the jury the language of the ticket collector as an independent act of damage.</p>

<p>Verdict. — The evidence in reference to the contract for tile work in this case being capable of more than one inference, it was error to direct a verdict.</p>

Before W. B. Gruber, Special Judge, Union, June, 1910. Motion for new trial on after discovered evidence in State against W. T. Jones. Defendant appeals from refusal. cite: Error to refuse evidence in reply: 57 S. C. 46; 68 S. C. 304; 79 S. C. 229. Opinion evidence improperly admitted here: 55 S. C. 341; 63 S. C. 559; 65 S. C. 558; 72 S. C. 346; 75 S. C. 409.

<p>Before Gage, J., Anderson, February, 1911.</p> <p>Action by Fain & Stamps against J. K. Manos in court of Magistrate B. F. Wilson. From Circuit order affirming judgment of magistrate, defendant appeals.</p> <p>cite: Guarantor defined: 4 Words & Phrases 3179; Black L. Die. 550; 20 Cyc. 1397, 1413. Legal consideration of guaranty: 8 John. 29; 20 Cyc. 1414, 1413, 1443.</p> <p>cite: Testimony objected to must have been shown to be prejudicial:-65 S. C. 1; 76 S. C. 275. Consideration for guaranty: 27 S. €. 621; 47 S. C. 176; 3 Ency. of Law 371.</p>

Before Gary, J., Lexington, October, 1910. Action by Lessie H. Fort against Howard Caldwell and N. C. McDuffie Co. The Circuit decree is: “On and for many years prior to the 12th day of September, 1907, the plaintiff was owner in fee of a large body of timbered land situate in Lexington county. That at said time the defendant, Howard Caldwell, was a real estate dealer, living in the city of Columbia.

<p>Before SeasE, J., Florence, September, 1910.</p> <p>Action by J. W. Holliday against G. H. Pegram & Company. Defendants appeal.</p> <p>cite: Do the letters make out a completed contract? 1 Page on Con., sec. 26; 118 Am. St. R. 806; 142 Mass. 442; 1 Par. on Con. 476-7; 9 Cyc. 267; 14 Allen 242; 6 H. L. Cas. 238; 80 Fed. 337; 5 Ch. Div. 648; 41 Am. St. R. 545; 10 Nev. 135; 10 Mo. App. 106; 46 Vt. 478; 19 Johns 212; 20 Wall. 546; 47 Hun. 494; 22 Fed. 596; 5 Rich. Eq. 91; 87 Hun. 477; 48 N. W. 963; 35 N. J. Eq. 266; 9 Cyc. 280; 29 D. R. A. 431. Rxtrinsic evidence is admissible to show whether the letters were intended to make a contract: 19 C. C. A. 611; 2 Par. on Con. 667; 17 Cyc. 692; 5 Wall. 689; 21 Ency. 1097, 1115; 107 U. S. 437; Thayer Prel. Treat, on Ev. 445; 9 Cyc. 588; 9 Wall. 50; Page on Contracts 1745. Whether the letters made a complete contract was for jury: 67 S. C. 34; 101 U. S. 263; 23 Ency. 555; Abb. on Jury Trials 459; 11 Wheat. 59; 10 D. R. A. 689; 79 N. Y. 108.</p> <p>Test as to whether contract is made by letters: 1 Hill Ch. 159. Landlord is not bound to make repairs in absence of contract: 32 S. C. 589.</p> <p>Statement of Facts.</p> <p>This is an action, to recover the sum of eight hundred and fifty dollars, for the rent of a tobacco warehouse.</p> <p>The complaint alleges, that, at the times herein mentioned, the defendants, G. H. Pegram and C. W. Payne, were copartners under the firm name of Pegram & Company; that about the 23d of March, 1910, the plaintiff entered into an agreement with the defendants, by the terms of which, the}'' were to occupy certain property, known as the Dixie Warehouse, for the season of 1910, and to pay, as rent, the sum of eight hundred and fifty dollars, on the first of September, 1910; that pursuant to said agreement, the defendants entered into possession of the premises, and were in possession of the same, at the time this action was commenced.</p> <p>The defendants, in their answer to the complaint, admitted the allegations of partnership between the defendants, but denied all the other allegations.</p> <p>The following letters were introduced in evidence, without objection:</p> <p>Bxhibit “A.” “Kinston, N. C., February 3, 1910. “Mr. Jos. W. Holliday, Savage, S. C.</p> <p>Dear Sir: I have discussed your proposition with Mr. Payne, and he prefers, as I do, to rent the W. H. for the coming season, with option to buy, October 1, 1910. We will give you $850 rent, if we don’t buy, but if we buy the W. H., will pay $1,000 October 1, 1910, and eight per cent, interest on $6,000 from date of contract and $1,000, with interest at 8 per cent, each October 1st thereafter, until the $6,000 is paid. Please write me as soon as convenient, on account of the other proposition, I have under consideration. Yours truly, G. H. Pegram.”</p> <p>Exhibit “BE “Savage, S. C., March 10, 1910.</p> <p>“Mr. G. H. Pegram, Kinston, N. C.</p> <p>Dear Sir: Referring further to renting you my warehouse in Florence, S. C., for the coming tobacco season, will say, that if you still care for it, I will rent it to you for eight hundred and fifty dollars, payable on the first day of September, 1910, provided you accept same promptly. You being the first to see about it, and others are after me for it. If you want it, we can arrange the rent agreement, when you come down to look after the work. I am, yours truly, (Signed) Jos. W. Holliday.”</p> <p>Exhibit “CE “Kinston, N. C., March 30, 1910.</p> <p>“Mr. Jos. W. Holliday, Savage, S. C.</p> <p>Dear Sir: We will take your warehouse at Florence, S. C., $850.00 rent, for the coming season 1910. You can send me copy contract, will arrange rent agreement, when come down. Yours truly, (Signed) G. H. Pegram.”</p> <p>Exhibit “DE “Savage, S. C., 3-23-1910.</p> <p>“Mr. G. H. Pegram, Kinston, N. C.</p> <p>Dear Sir: I beg to acknowledge yours of March the 20th, 1910, in answer to mine to you, of the 10th of March, and as per same, consider it a bargain or trade of rent, for my warehouse in Florence, S. C.', for the coming season. We can arrange the agreement when you come down to begin work, out in the country. Yours truly, (Signed) Jos. W. Holliday.”</p> <p>Exhibit “EE “Florence, S. C„ June 7th, 1910.</p> <p>“Mr. J. W. Holliday, Savage, S. C.</p> <p>Dear Sir: If you can make it convenient, to come over to Florence this week, I am ready tO' make contract for your warehouse. If you can’t come this week, please state time when you can come, so I won’t be out of the city. Yours truly, (Signed) G. H. Pegram.”</p> <p>Exhibit “E.” “Savage, S. C., 6-9-10.</p> <p>“Mr. G. H. Pegram, Florence, S. C.</p> <p>Dear Sir: I am just in receipt of yours of the 7th. It will be so that I can’t get up to Florence, this week. If you are going to do any work, out through the country, in working this section, call by and we can fix up our contract. If you are not coming down this way, I will try and go to Florence, one day before long. Trusting, though, that you will come down, through this section, I am, yours truly, (Signed) Jos. W. Holliday.”</p> <p>The following letters and proposed contract, were offered by the defendants, but his Honor, the presiding Judge, refused to allow them, to be introduced in evidence:</p> <p>“Florence, S. C., July 20, 1910.</p> <p>“Mr. J. W. Holliday, Savage, S. C.</p> <p>Dear Sir: Mr. G. H. Pegram is not quite satisfied with the contract, for lease of the Dixie Warehouse, which you sent him. Fie would like to have the following changes made in the contract:</p> <p>“1st. The lease should be for the term of one year from the 20th day of March, 1910, to the 20th day of March, 1911.</p> <p>“2d. An agreement on your part, to keep the roof in good repair, so far as is practicable, will be satisfactory to Mr. Pegram; or an agreement giving him the authority, to put the roof in good repair, and to make such repairs, as he may think necessary, at your expense, will be equally satisfactory.</p> <p>“3d. In making an agreement for an option to renew the lease, the contract should state,'that in case of renewal, the new contract should be upon the same terms and conditions, which govern this contract.</p> <p>“Please advise us at your earliest convenience, in regard to this matter, and if our suggestions are acceptable to you, we will draw a contract accordingly, and will have it signed by Mr. Pegram, and forwarded to you for your signature. Yours very truly, (Signed) R. E. Whiting.”</p> <p>“Savage, S. C., 7-21-10.</p> <p>“Messrs. G. H. Pegram & Co., Florence, S. C.</p> <p>Gentlemen: I am in receipt of yours of the 18th, and am very much surprised and very sorry, to hear the roof is as you- write. I did not make any 'bargain or offer with Mr. Lundy to do the work. He mentioned it to me, in the warehouse, and I asked him to look at, and examine it, and see what he would do it for, and write me, as I stated in Mr. Ragsdale’s office, where, in talking over it, I left it to you, to have done, and I was to pay you for it. As yet, I have no help, and it is very bad for me, to get away from here, and as per our understanding, it seems you could have the leaks stopped, just as well as I could. And if the shingles are as you state, there is a roof paint that will stop leaks; even if it is put on a wire gauze it won’t leak; so, see if it is kept by any of the stores there, and use that on the leak to stop them, in place of taking off the shingles. I will pay for it and the putting on. Trusting the paint will stop the leaks, and you can get it and will have it attended to at once, and from time to time as needs be. I would suggest that you mark the leaks, and then get some one that understands putting on paint (a regular painter), to do it. Look into this, and let me hear from you about it. Hoping it will do all right, I am, yours truly, (Signed) Joseph W. Holliday.”</p> <p>“Savage, S. C., 8-29-10.</p> <p>“Messrs. G. H. Pegram & Co., Florence, S. C.</p> <p>Gentlemen: Your rent to me of eight hundred and fifty dollars, for the warehouse will be due on the first day of September, 1910'; please send me your check for same on that date, less what you have paid out, on repairing building, and for the amounts; send me receipted, itemized bills from the parties, who did the work for you, and from whom you got the material. Trusting you will be prompt in this, I am, yours truly, (Signed) Jos. W. Holliday.”</p> <p>“Savage, S. C., July 14, 1910.</p> <p>“Mr. J. W. Ragsdale, Florence, S. C.</p> <p>Dear Sir: As per mutual understanding between Mr. Pegram, Mr. Whiting and myself, I enclose an agreement for rent of warehouse property, for 1910, which covers all points, as per our discussion in your office. I have signed same, in the presence of a witness, and you can have Mr. Pegram to sign them, keeping one and returning one to me. I am, yours truly, (Signed) Jos. W. Holliday.”</p> <p>“State of South Carolina, County of Florence.</p> <p>“This agreement, made about the 20th day of March, 1910, between Jos. W. Holliday, lessor, and G. H. Pegram and C. W. Payne, constituting the firm of G. IT. Pegram & Co., lessees.</p> <p>“The said Jos. W. Holliday, does hereby rent to the said G. H. Pegram & Co., his lot from the first day of January, 1910, to the 31st day of December, 1910, for eight hundred and fifty dollars, payable on the first day of September, 1910, * * *</p> <p>“The said G. PI. Pegram & Co. have rented from the said J. W. Holliday, his lot known as the Dixie Tobacco Warehouse lot, for which the said G. FI. Pegram & Co. are to pay to the said Jos. W. Holliday, eight hundred and fifty dollars, on the first day of September, 1910. * * *</p> <p>“And it is understood by and between the said parties, that, as there are some leaks in the roof of the warehouse, which the said G. H. Pegram & Co. agree to have patched, from time to time, by putting on a good shingle or shingles, in the place of defective one or ones, or shingles that ma}'be off of said roof, to stop said leaks, which they are to keep an itemized account of the cost of said work, rendering same to the said Holliday, which he is to pay them for.</p> <p>“And the said Jos. W. Holliday further agrees, that if he does not dispose of the said property, by the first day of February, 1911, he will give the said G. H. Pegram & Co. the preference of renting said property again, for 1911, provided they want it, and will notify me, so I will get said notice by the 10th day of February, 1911, and we enter, at once, into an agreement which is mutually satisfactory to both parties.</p> <p>“Witness our hands and seals, this the 14th day of July, 1910.</p> <p>“Signed, sealed and delivered in the presence of R. S. Altman.</p> <p>“(Witness as to J. W. Holliday’s signature.) (Signed) J. W. Holiday. (L. S.)”</p> <p>At the close of the testimony his Honor, the Circuit Judge, directed a verdict in favor of the plaintiff, for eight hundred and fifty dollars, with interest from the first of September, 1910, and the defendant appealed.</p>

<p>1. Condemnation. — Foreign electric corporations, domesticated in this State, prohibited the right to condemn lands in the States of their origin may condemn under the laws of this State.</p> <p>Section 1895, of Code of 1902, is repealed by act 24 Stat., 489.</p> <p>2. Constitutional Law. — The act op 1904, 24 Stat., 489, is not violative of the provisions of section 17 of article III of the Constitution, in that the title referred to the provisions of other statutes which were adopted without setting them out in the body of the act.</p> <p>3. Condemnation. — An electric corporation may condemn rights of way for an electric line to furnish light and power to municipalities and private citizens.</p> <p>Boyd v. Granite Go., 68 S. C., 433; Wilson v. Alderman, 69 S. C., 176; Riley v. Union Station, 71 S. C., 467; Alderman v. Wilson, 77 S. C., 165; McMeekin v. Power Go., 80 S. C., 512; Williams v. Gold Mining Go., 85 S. C., 1, affirmed.</p>

<p>1. Evidence — Discretion.—Admission of cumulative evidence in reply is within the discretion of the trial Judge, which was not here improperly exercised.</p> <p>2. Charge. — After a jury has been charged and sent into the room it is proper to recall them and give them an omitted instruction.</p> <p>3. Electric Railways — Wantonness—Issues.—On evidence tending .to show a street car was moved suddenly with a violent jerk and without warning which caused injury to a passenger, it is proper to send the issue of wantonness to the jury.</p> <p>4. Negligence — Issues.—The Court cannot conclusively say the cause of action based on negligence was completely overthrown by defendant’s evidence as to plaintiff’s negligence.</p> <p>5. Contributory Negligence. — To an action based on wilfulness, the defense of contributory negligence will not lie.</p>

<p>Before W. T. Aycock, Special Judge, Richland, Spring term, 1911.</p> <p>Indictment against Nannie Bee Súber for murder of Hattie Súber. Defendant appeals.</p> <p>cites: Code 1902, 2950; 79 S. C. 175; 61 S. C. 22; 1 Green. 33-4; 13 Cyc. 537; 28 B. R. A. 40; 74 Cal. 570; 78 Ky. 643; 58 Miss. 386; 84 Wis. 188-9; 134 Mass. 503; 10 Ind. 561; 123 111. 195; 24 Ba. Ann. 46-7; 5 B. R. A. 776; 3 Parker, Cr. R. 25.</p> <p>cites: 1 Bish. New Cr. Proc. 965; 79 S. C. 174; 83 S. C. 82.</p>

<p>Contempt.- — The dispensary commission has the power to require by subpoena duces tecum the production before them of books and papers for examination in any particular investigation and to punish by contempt for refusal, but it cannot punish in this way the chairman of the former commission for-refusing to turn over vouchers for money paid out by the former commission.</p>

<p>Motion to dismiss appeal in G. L. Warren et al. against P. J. Wilson, in which plaintiffs are appellants.</p>

<p>Before Memminger, J., Darlington, April term, 1907.</p> <p>Action by B. S. Josey & Co. against Davis Burris. Defendant appeals.</p> <p>Mr. W. F. Dargan, contra, cites: As to jurisdiction of the Court: 23 Stat. 1199, 1200; Code of Proc. 147, sub. 3, 144, sub. 4; 16-S. C. 285.</p>

Petition in the original jurisdiction of this Court by D. C. Elledge and R. F. Golden for writ of mandamus against T. B. Wharton, foreman of the grand jury; T. C. Burnett, supervisor; G. B. Riley and George Dorn, county board of commissioners, and E. Graham Payne, treasurer, of Greenwood county.

<p>Petition by James S. Verner and A. R. Taylor in the original jurisdiction of this Court for injunction against W. F. Muller, A. B. Campbell, J. E. Heise, E. M. Hook and Charles Kinsler, as members of the board of county commissioners of Richland county.</p> <p>cite: As to the constitutionality of the act: 74 S. C. 449; 76 S. C. 332; 77 SC. 272. As to the legality of the election: 73 S. C. 398; 86 S. C. 425, 461. Levying tax to meet interest is not a condition precedent to issuing bonds: 85 S. C. 163. Charging street cars a toll would not render the act unconstitutional: 76 S. C. 332.</p>

Before DeVore, J., Spartanburg, October term, 1909. Action by Ed McJimpsey, by guardian ad litem, against Southern Railway — Carolina Division. Defendant appeals. cite: Plaintiff cannot recover under North Carolina law for injury after going on platform before train stops: 55 S. E. 713; 43 S. E. 847. Slowing and starting the train in this case was not negligence: 47 Am. R. 566; 16 Am. St. R. 63; 84 C. C. A. 330; 85 C. C. A. 565; 79 C. C. A. 350.

<p>Motion for stay of execution pending appeal in case of State against J. B. Bates.</p>

<p>1. Dispensary Law- — Liquors.—The words in the liquor statute, “storing and keeping in possession,” involve “the idea of continuity or habit,” and this construction applies in prohibition as well as in dispensary counties.</p> <p>2. Ibid. — Ibid.—It is error to instruct the jury that it is unlawful, in a prohibition county, to have liquor in possession, no matter in what quantities or for what purpose.</p>

<p>Before D. S. Henderson, Special Judge, Greenville, May term, 1910.</p> <p>Indictment against Dave Durham. Defendant appeals.</p> <p>cite: Contents of a warrant should not be proved by parol: 41 S. C. 526; 35 S. C. 311; 2 Rich. 144; 5 Rich. 372; 2 Hill 542; 1 Green Ev., sec. 558. Solicitor should not contradict his own witness: 43 S. C. 123; 22 S. C., 187.</p>

<p>Before J. H. Marion, Special Judge, Laurens, September term, 1910.</p> <p>Indictment against Green F. Hunter. Defendant appeals.</p> <p>cite: Indictment must allege offense committed on certain day: 51 S. C. 289. The different acts constitute but one offense: 81 S. C. 197; 120 U. S. 274; Cowp. 640.</p>

Before Audrich, J., Spartanburg, September, 1910. Indictment against J. R. Parris. Defendant appeals. cites: No issue' of fact-zvill be considered if there is any testimony to support verdict: 11 S. C. 195; 24 S. C. 593; 36 S. C. 504; 69 S. C. 593. Charge on the facts: 47 S. C. 563, 67 S. E. 160.

<p>Injunction — Constitutional Law. — In an action to enjoin trespass and cutting timber, both parties claiming title, defendant being in possession and having cut a quantity of timber, it is not compelling plaintiff to sell its timber to defendant and taking private property for private use, to permit defendant to remove the timber already cut upon its giving bond for adequate protection of plaintiff.</p>

Before Wilson, J., Laurens, March, 1911. Action by John W. Ferguson against Lou Henderson et al., and by Palmetto Bank of Laurens against T. B. Henderson et al. Defendants, Lou Henderson, Sue Henderson and Bell Henderson, in the first stated action, appeal. cite: One obligor of a note may prove by parol that he is a surety: 2 Bail. 107; 24 Ency. 723; 10 Barb. 512; 8 Cyc. 263; 123 S. W. 766; 67 S. E. 205; 2 Hill 403; 26 S. C. 310; 68 S. C. 110; 10 S. C. 253; 25 S. C. 547; 61…

<p>Adultery. — There was strong evidence in this case to show the defendant was guilty of habitual carnal knowledge of a woman and that it continued after the defendant was married.</p>

<p>Witness — Contradiction.—On trial for arson, that defendant, a woman, was at one time arrested in another city dressed in men’s clothes, carrying a basket with splinters, oil and matches, the time not being connected with the crime for which she was being tried, is collateral and it is improper to contradict as to it.</p>

<p>1. Evidence. — A defendant in a homicide case may be asked on cross-examination if he did not make, under oath before the mayor, certain statements which tend to controvert his defense.</p> <p>State v. Sewn, 32 S. C. 396, distinguished from this ease.</p> <p>2. Ibid. — Opinion.—A conclusion as to the direction of sound is not opinion evidence but a matter of fact or knowledge.</p> <p>3. Jury. — Permitting the jury at their request to take into their room a diagram of the place of the shooting over objection of defendant that it was not correct, they having heard the evidence on this point, is not an abuse of discretion.</p> <p>4. Charge. — Where a witness in a homicide case admits that he may have jokingly said the country was going to the devil, if they would convict a white man for killing a negro, it is proper for the Judge to instruct the jury that there is no distinction in the administration of the law between people of different races.</p> <p>5. Charge. — Where the evidence for the State in a homicide case is both direct and circumstantial and there is no request to instruct as to the rule governing conviction on circumstantial evidence alone, it is not error not to give such instruction.</p>

<p>Before Prince, J., Lee, Fall term, 1910.</p> <p>Indictment against Lena Smith. ■ The State appeal's.</p> <p>cites: 73 S. C., 199 ; 20 Cyc. 1301; 56 S. O. 382.</p> <p>Mr. Smith, oral argument.</p>

<p>Before Moore, Special Judge, York, November term, 1909.</p> <p>Indictment against John D. Ashe. Defendant appeals.</p> <p>Mr. Hart cites: Crime should be plainly described: 54 S. C. 198; 1 Arch. Cr. Proc. 276. Breach of trust is larceny: 21 S. C. 353; 20 S. C. 392; 5 S. C. 66. Rule of description: Chev. 75; 1 Rich. 184; 13 Pet. 176; 14 S. C. 353; 10 Rich. 374.</p>

■ Before. Sease, J., Aiken, Spring term, 1910. Action by M. C. Craig against Augusta-Aiken Railway and; Electric Company. The plaintiff appeals on the following exceptions: I. “Because his Honor, the presiding Judge, erred in modifying and altering the plaintiff’s fifth request to charge, which is as follows: ‘5th.

<p>Before W. B. Gruber, Special Judge, Spartanburg, March, 1911.</p> <p>Action by A. B. Cooke against W. F. Young, as administrator of S. T. Poineer. Plaintiff appeals.</p> <p>cites: Code 1902, 1662, 16'6'3; 76 S. C. 450 ; 51 S. C. 550; 72 S. C. 366; 57 S. C. 345; 2 Rich. 73; 1 S. C. 156; 30 S. C. 68; 77 S. C. 145; 82 S. C. 499; 23 L. R. A., N. S. 403; 33 L. R. A. 231; 22 S. E. 516; 90 N. Y. 442.</p> <p>Oral argument.</p>

<p>Before Watts, J., Greenville, June, 1910.</p> <p>Action by Dicey Fisher against Warren A. Fisher. Defendant appeals.</p> <p>cites: Dower allozved in: 16 S. C. 91; 20 S. C. 560; 87 S. C. 47. Not allowed in: 33 S. C. 194; 48 S. C. 458. Estoppel: 77 S. C. 244.</p> <p>cites: Wife is entitled to dower: 16 S. C. 91; 74 S. C. 285. Seal of officer necessary: 51 S. C. 45.</p>

<p>Rtced by case of Lancaster v. Southern Life Insurance Oo., post, 179.</p>

Before DeVorE, J., Richland, November, 1910. Action by R. A. Lancaster against Southern Life Insurance Company by the following complaint: 1. “Upon information and belief, that at the times hereafter mentioned and at the present time, the .defendant was and is a corporation organized and existing under and by virtue of the laws of the State of North Carolina, engaged in the business of writing and selling life insurance. 2. “That the plaintiff, at the times hereafter…

<p>Before DeVorE, J., Lancaster, April, 1910.</p> <p>Action by New York Life Insurance Company against Nannie B. Mobley. Defendant appeals from the following order:</p> <p>“On hearing the verified complaint, filed in the above entitled cause, and on motion of James H. McIntosh and R. B. Allison, attorneys for the plaintiff herein:</p> <p>“It is adjudged, ordered and decreed that the defendant, Nannie B. Mobley, her agents and attorneys, be enjoined and restrained from selling, assigning or transferring the judgment obtained and entered up by her against the New York Life Insurance Company, in the case of Nannie B, Mobley, as plaintiff, against the New York Life Insurance Company, as defendant, and that the «¡aid Nannie B. Mobley, her agents and attorneys, be also enjoined and restrained from causing execution to be issued thereon or levy to be made on account thereof, on any of the property of the said New York Life Insurance Company; and that this injunction or restraining order stand in full force until the 'final hearing of this cause.</p> <p>“Let a copy of this order be served on the defendant, Nannie B. Mobley, her attorney, and the sheriff.”</p> <p>cites: Injunction should not be granted without bond: 29 S. C. 491; 5 S. C. 177; 51 S. C. 388.</p> <p>Mr. Allison cites: Temporary injunction may be granted without notice: 5 S. C. 159; 37 S. C. 223. And should be granted zuhere the sole purpose is an injunction: 69 S. C. 159; 75 S. C. 220; 84 S. C. 51; 86 S. C. 160. Failure to require bond is not a jurisdictional defect: 5 S. C. 159.</p>

Before Memmingrr, J., Hampton, Fall term, 1910. Action by Katie E. Owen and A. E. Owen against the Western Union Telegraph Company.

Before Ernest Moore, Special Judge, Eairfield, October, 1910. Action by Sarah Emeline Rembert and others against Carrie Vetoe and others. So much of the Circuit decree as is material is: “This is an action seeking a sale for partition of certain real estate, described in the complaint, alleged to be owned as tenants, in common by the plaintiffs and defendants.

Before Shipp, J., Spartanburg, March, 1910; Action by1 C. E. Rowe against the Southern Railway Company.

Before GagiJ, J., Berkeley, March, 1910. Action by the State against Jno. O. Edwards, S. E. Crawford, W. F. Lanier and Frank Read. Defendants appeal. cite: Second, defense should not have been stricken outj State v. Sandifer, 68 S. C. Slate should show default occurred during time for which the defendants are bound: 1 MeC. 41; 2 Hill *589; 14 S. C. 135; 22 Stat. 744.

<p>Before Aedrich, J., Spartanburg, October term, 1910.</p> <p>Indictment against Travis Bright. Defendant appeals.</p> <p>cite: Competency of threats and acts: 86 S. C. 383; 73 S. C. 379; 74 S. C. 140. Charge: 81 S. C. 378.</p> <p>cites: As to remarks of Judge: 61 S. C. 17; 71 S. C. 136; 87 S. C. 537. Charge on facts: 47 S. C. 519; 36 S. CT544; 40 S. C. 37. Admission of other evidence cures error:.86 S. C. 383; 56 S. C. 431.</p>

Before DeVorE, J., Marlboro. ' Indictment against Thomas M'cKay. Defendant appeals. cite: Prosecutrix should not state circumstances in detail: 52 S. C. 488 ; 19 Ency. 959. Party may no.t discredit his own witness: 7 S. €. 289; 43 S. C. 16; Chev. 44; 1 Bail. 32; 73 S'. C. 408; 2 N. & McC. '331. Improper conduct or language by State’s attorney in presence of jury: 77 S. C. 409 ; 80 S. C. 352; 16 En-cy. 524; 4 Ency. 875; 38 S. C. 580; 48 S. C. 145.

Before Aldrich, J., Spartanburg, October, 19.10. Action by T. P. Sims & Sons against the Western Union Telegraph Company. From Circuit order affirming judgment of Magistrate A. H. Kirby defendant appeals on the following exceptions: I. “Error in not sustaining defendant’s- first ground on motion for nonsuit, which was as follows: That the facts as sworn to do not constitute a cause of action against the defendant Western Union Telegraph Company.

<p>Constitutional Law- — Cities and Towns. — Under the provision of the amendment to the Constitution, ratified February, 1905, 24 Stat., 955, permitting the city of Greenville to issue bonds over the constitutional limitation “for improvement of streets and sidewalks,” the city may issue bonds to repair or reconstruct a bridge which is a part of a street by making it larger and paving it like the other portion of the street.</p>

<p>1. Jurisdiction. — Whether a probate judge is related to one of the parties to a case before him within the prohibited decree is not a jurisdictional question and a party cannot make it in this Court on motion to sustain a Circuit decree on additional grounds.</p> <p>2. Judges — Relationship.—A motion in the Circuit Court to remand a case appealed to that Court from the probate court and to grant a new trial on ground that the probate judge was related to one of the parties within the prohibited degree may be refused where the movant fails to show by his affidavits that he used due diligence in trying to ascertain the fact of relationship before and during the trial and that the judge was aware of such relationship before filing his decree.</p> <p>Mr. Justice Woods thinks whenever the fact appears to an appellate court that a case has been tried in the court below by a judge so related the court should grant a new trial.</p>

Before Shipp, J., Spartanburg, May term, 1910. Action by John B. Kirby against.Jerry Mathis. Defendant appeals. cite: Cattle required to be fenced in: 133 U. S. 320; Strob. 173; 10 Rich. 227; 2 Stat. 81; 6 Stat. 331; 16 Stat. 689; Code 1902, 1498. cite: One who cares for cattle is liable for damages done by them as well as the oivner: 2 Cyc. 215, 323; 4 L. R. A. 840; 2 Black Com. 209-11.

Before Ernest Moore, Special Judge, Lancaster. Action by S. S. Russell against J. A. Tillman and D. C. Barnes. Defendants appeal. cites: Bvidence responsive to allegations in pleadings is not incompetent: 82 S. C, 276; 79 S. C. 502; 70 S. C. 11. Failure of consideration: 25 S. C. 136. cites: No plea of confession and avoidance, evidence as to consideration is incompetent: Thomp. on Neg., sec. 2506; 46 L. R. A. 238; 70 S. C. 211; 75 S. C. 68; 84 S. C. 120; Pom.

<p>1. Juror.' — Where there is no showing in the record of the alleged disqualification of a grand juror, refusal to quash indictment on ground that it was found by illegal grand jury will not be reviewed.</p> <p>2. Ibid. — Disqualification of only one grand juror will not invalidate an indictment, unless it appear that the jury was composed of only twelve men.</p> <p>Mr. Justice Hydricic dissents.</p> <p>3. Charge. — Where defense puts up no evidence, and the only reasonable inference to be drawn from the testimony is that insulting language was used by defendant to deceased in an angry, hostile manner and that such language did actually bring- on a difficulty, it is not a charge on the facts for the Court to assume these circumstances and to charge the law applicable.</p> <p>Mr. Justice Htdricic dissents.</p>

<p>L Fraud — -Deeds.—There was evidence in this case tending to show fraud and undue influence on the part of a brother in procuring two deeds from an aged and infirm sister dependent on him for advice and in whom she had much confidence.</p> <p>3.Ibid. — Trust.—-Where there is a relation of trust and confidence between a brother and an aged and infirm sister and he procures deeds from her executed in her last illness, executed in presence of two of his sons and drawn by one of them, the principle that the law presumes fraud where the relation of trust and confidence exists applies.</p> <p>3. Ibid. — Deeds.—Keeping the deeds from record until after death of grantor although within the forty days then allowed by law for recording is a circumstance to be considered by the jury in considering the bona '(ides of the deeds.</p> <p>4. Ibid. — Ibid.-—Dating deeds in January executed in March, ten days before death of grantor, and then probably when she is in extremis, affords grounds for an inference that they were never delivered.</p> <p>5. Juror. — It is not an abuse of discretion to excuse a juror who says he has formed an opinion about a case and that it would take evidence to remove it, although he thought he could render a verdict according- to the law and evidence.</p>

<p>Before’ Prince, J., Kershaw, March term, 1910.</p> <p>Action by Stephney Lee against Northwestern Railroad Company. Defendant appeals.</p> <p>Mr. Purdy cites: Gross negligence: 29 Cyc. 423; 86 S. C. 379; 29 S. C. 315.</p> <p>cite: Gross negligence: 29 Cyc. 423; 30 111. App. 504; 2 Posey Unrep. Cas. 239; 3 Wilson Civil St. App., sec. 20; 53 S. C. 121; 58 S. C. 228. Charge not on facts: 68 S. C. 392; 69 S. C. 1; 71 S. C. 95; 72 S- C. 556.'</p>

<p>Before Ardrich, J., Aiken, December, 1909.</p> <p>Action by Allie Pennington et al. against J. A. Pennington. Defendant appeals.</p> <p>cite: Plaintiff must show valid contract: 59 Fed. R.-942; 26 Ency. 21; 35 Fed. R. 635; 32 S. C. 528; 29 S. C. 598; 1 DeS. 116; 13 Rich. Eq. 250; 7 Rich. Eq. 378; 27 S. C. 362; 39 S. C. 367; 77 S. C. 516; 6 S. C. 102; 64 S. C. 178. Acts must have been performed in pursuance of the contract: 26 Ency. 23, 59.; 27 S. C. 348, 621; 63 S. C. 551; 48 S. C. 496.</p> <p>cites: Equity will enforce such a contract: 56 S. C. 259; 59 S. C. 395; 76 S. C. 170; 85 S. C. 185; 77 S. C. 511. Law presumes reasonable time for paying for place: 26 Ency. 77; 77 S. C. 513; 53 S. C. 568. All the testimony considered together shows purchase money paid in full: 87 S. C. 40; 86 S. C. 304, 159.</p>

<p>1. Railroads — Punitive Damages. — Where there is evidence tending to show a watchman on a bridge was killed by a passing train by reason of the failure of those in charge of it to obey the slow order in force while the bridge was being repaired, and the block signals, there was no error in refusing motion for nonsuit as to .punitive damages.</p> <p>2. Ibid. — Evidence.—That photographs of the place of an accident on a railroad track were taken some time after the occurrence and had marks on them indicating distances, which were explained, do not render them incompetent.</p> <p>3. Evidence — Contradiction.—If the matter is the subject of contradiction, a train master may be contradicted as to a statement made to him by an agent of his road, by a bystander without the agent going on the stand.</p> <p>4. Ibid. — Declarations.—Where similar declarations of a party have been admitted, without objection, admission of another of the same kind is not prejudicial.</p> <p>5. Ibid. — Railroads—Reply.—Where a railroad company sets up as a defense to an action for negligent killing by one claiming to be the wife of deceased, that he was married to another, plaintiff may prove in reply declarations of the wife as alleged by it to the effect that defendant knew she said she had been married to another than deceased.</p> <p>6. Railroads — Release—Issue.—Whether the defense of release from liabilty is an admission of liability depends upon the circumstances and is an issue for the jury.</p> <p>Rookard v. Ry., 84 S. C., 192, distinguished, from this case.</p> <p>7. Negligence. — Charge here complained of, held not to have instructed the jury what acts constitute negligence.</p>

<p>1. The Carrier and the Pullman Company are jointly liable to a passenger for assault in his berth and robbery.</p> <p>3. Ibid. — The Southern Railway is liable for injury to a passenger on the Southern Railway — Carolina Division.</p> <p>3. Ibid. — It is the duty of Pullman Company to keep a proper watch over passengers while asleep in their berths to guard them from robbery and assault, without notice from them of threatened danger.</p> <p>4. Ibid. — Punitive Damages. — There being evidence tending to show a reckless disregard on the part of the Pullman Company of the safety of the sleeping passenger, the issue of punitive damages was properly sent to the jury.</p> <p>A. Mental Suffering — Ibid.—The charge here cannot be construed to mean punitive damages may be awarded for mental suffering apart from physical injury or assault.</p> <p>6. Wealth — Ibid.—In cases involving punitive damages the wealth of the defendant is pertinent to guide the jury in giving a verdict sufficient to punish.</p>

<p>Before-, J., Sumter,-.</p> <p>Indictment against W. P. Kelly. He appeals.</p>

<p>1. Instructions as to manslaughter, and self-defense have no application to a case where a man is assassinated in his home, nor in such case is there any reason to elaborate the meaning of malice, as there could be no doubt of malice being in the minds of the perpetrators.</p> <p>2. Instructions as to the testimony of an accomplice held not to have led the jury to understand that they should not consider the turpitude of an accomplice in giving weight to his testimony.</p> <p>3. Trial — New Trial — Appeal.—The exceptions alleging such irregularities in the trial of this cause that the defendants were not accorded a fair trial, together with the record having been informally submitted to the trial Judge for his report, and there being nothing in this report to show the affidavits and matters therein alleged were ever passed on by the Circuit Court, the appeal is dismissed without prejudice to have these matters passed on by the Circuit Court.</p>

Before Ernest Moore, Special Judge, Eairfield, September term, 1910. Action by Hagar Wesley, 'by guardian, against Southern Railway.

Before Memminger, J., Marlboro, May, 1910. Action by Geo'. A. Brown against J. B. 'Green, as sheriff, and Wm. M. Bird & Co. Plaintiff appeals. Mr. LeGrand cites: Judgment is no lien on homestead: 24 S. C. 424; 26 S. C. 1. Where action is for injunction temporary injunction should be granted: 75 S. :C. 221; 69 S. C. 159.

<p>Before Prince, J., Williamsburg, December, 1910.</p> <p>Action 'by A. W. Flagler against Atlantic Coast Lumber Corporation. Plaintiff appeals.</p> <p>Mr. Clayton cites : Contract is too uncertain to enforce: 38 S. E. 26. Perpetuities: 22 Ency. 702-737.</p> <p>Mr. Buck cites: When a contract provides that timber is to be removed in a specified time all timber not so, removed reverts to grantor: 25 Cyc. 155-2; 13 Me. 122; 96 Mich. 83; 62 Am. St. R. 661; 46 S. E. 24; 51 S. E. 852; 35 L. R. A. 513; 94 Ca. 353; 22 Wis. 544; 54 Ohio 298; 67 Me. 84; 37 Wis. 360’; 119 Am. St. R. 709; 55 L. R. A. 513; 128 Am. St. R. 868.</p> <p>cite: Is deed void for uncertainty: 38 S. E. 26; 12 Rich. 314; 77 S. C. 255; 80 S. C. 106; 79 S. C. 166. The deed conveys the timber in fee simple: 80 S. C. 106. And grantee may remove at any time: 77 S. C. 255; 12 Rich. 314; 11 Coke 46; 3 Am. Dec. 215; 13 Me. 122; 10 Gray 48; 47 Me. 595 ; 1 Am. St. R. 551; 53 Am St. R. 73; 37 S. W. 260; 70 S. W. 290; 123 Am. St. R. 58; 98 S. W. 238; 99 S. W. 736; 57 S. E. 873. Provision as to removal is a covenant: 123 Am. St. R. 58; 12 Rich. 314; 109 Am. St. R. 107; 20 Am. R. 119; 76 At. 194; 32 Am. R. 19-3; 49 N. E. 821. Covenant cannot control the grant: 79 S. C. 166; Harp. 492; 4 McC. 198; 76 S. C. 297; 13 Cyc. 619; 71 S. C. 64; 36 S. C. 295; 48 S. C. 431; 77 'S. C. 171. Should grantee begin to cut within a reasonable time: 79 S. C. 170; 80 S. C. 110[; 12 Rich. 314; 80 S. C. 106; 53 Am. St. R. 73. Removal in a reasonable time, the contract making no provision as to time: 55 L. R. A. 531; 22 Am. Dec. 410; 1 Sandf. Oh. 52; 2 Barb. 613; 15 Pa. St. R. 571; 10 Gray 48; 47 Me. 595; 16 Ky., L. R. 55; 49 N. H. 204; 18 Am. R. 455; 113 Mass. 107; 20 Am. R. 119; 28 Id. 776; 6 At. 48; 27 L. R. A. 434; 47 Id. 2-26; 30 At. 247; 37 S. W. 260; 43 S. W. 732; 36 S. E. 758; 83 Am. St. R. 661; 85 Id. 404; 49 S. E.' 436; 91 S. W. 53; 46 S. E. 24; 61 At. 675; 97 S. W. 354; 49 S. E. 831; 50 S. E. 369; 91 S. W. 27. Notice necessary to make time begin to run: 12 Rich. 314; 1 Am. St. R. 551; 30' At. 247; 2 Barb. 613; 15 Pa. St. R. 571; 53 Barb. 403; 35 Am. R. 683; 16 N. W. 666; 47 L. R. A. 226; 37 S. W. 260. Deed is not void as against public policy: 131 Am. St. R. 540; 77 S. C. 467; 85 S. C. 405; 79 S. C. 466 ; 80 S. C. 106, 185.</p>

<p>1. Deeds — Evidence—Transactions With Decedents. — A witness to a deed who afterwards purchases the land conveyed and sells it, is disqualified under section 400 of the Code from proving the execution of the deed after the death of the grantor.</p> <p>3. Ibid. — Ibid.—Where one witness to a deed becomes disqualified to prove its execution and the other is hostile to the party claiming under it, he may resort to the handwriting of the grantor and of the witnesses, the independent possession and control of the land by the grantee, and the recording of the deed, in support of its execution and delivery.</p>

<p>Petition of Philip P. Gadsden in re J. M. Lawrence et al. against E. Charlotte Lawrence et al.</p>

<p>Before Aldrich, J., Richland, June, 1911.</p> <p>Action by George V. Allworden against P. H. Nelson and the City of Columbia. Prom Circuit decree defendants appeal.</p>

Before W. B. Gruber, Special Judge, Spartanburg, November, 1911. Rule by defendant in Furman Rookard, administrator of Daniel Brown, against Atlanta & Charlotte Air Tine Ry. Movant appeals. cite: Motion is equitable: 67 S. C. 114. Court may set off one judgment against another: 31 S. C. 391; 3 Strob. 196; 2 MeC. 204. Statutes on same subject must be construed together: 36 Cyc. 1086; 83 S. C. 427. Funds in hands of administrator is liable for costs: 1 Bail. 533.

<p>Before DrVor]?, J., Kershaw, July term, 1910.</p> <p>Action by Nannie M. McKain, administratrix of Richard N. McKain, against Camden Water, Light & Ice Company. Plaintiff appeals on the following exceptions:</p> <p>1. “In refusing to allow the question: ‘Was that protected ?’ alluding to crank which came within two inches of a guard surrounding fly wheel' — the error of law being found: (a) In refusing to allow witness to testify as to an allegation of negligence, the unguarded condition of fly wheel, it being for the jury to determine whether the protection of the crank would not also have been a protection of the fly wheel, whether or not one could be protected without the other; (b) In refusing to allow testimony as to the ■conditions or surrounding circumstances of the alleged unsafe place where plaintiff’s intestate met his death-, because of an unprotected and unguarded fly wheel.</p> <p>3. “In allowing and permitting the witness Boynton over plaintiff’s objection to testify as to the terms of a verbal contract between the defendant and the Camden Oil Mill whose machinery defendant was using when plaintiff was killed. The error of law being found: (a) In allowing testimony as to irrelevant matter calculated to mislead the jury from one of the true issues in- this case, whether or not defendant furnished plaintiff’s intestate with a reasonably safe place to work; (b) In allowing testimony tending to show that the unsafe place was furnished defendant by the Southern Oil Mill under terms and conditions which prohibited or excused defendant from making any- changes, thereby injecting into the case a foreign issue calculated1 to mislead, and which could in no way excuse defendant 'for not performing its legal duty — to furnish plaintiff with a reasonably safe place to work.</p> <p>3. “In allowing and permitting the witness Eve over plaintiffs objection to testify as to the terms of a verbal contract between the defendant and the Camden Oil Mill whose machinery defendant was using when plaintiff was killed. The error of law being found: (a) In allowing testimony as to irrelevant matter calculated to mislead the jury from one of the true issues of this case, whether or not defendant furnished plaintiff’s intestate with a reasonably safe place to work; (b) In allowing testimony tending to show that the unsafe place was furnished defendant by the Southern Oil Mill under terms and conditions which prohibited or excused defendant from making any changes, thereby injecting into the case a foreign issue calculated to mislead, and which could in no way excuse defendant for not performing its legal duty — to furnish plaintiff with a reasonably safe place to work; (c) In allowing testimony of terms of contract which witness testifying did not inform plaintiff’s intestate of, or know of his own knowledge that plaintiff’s intestate derived such information from any other source, the only effect of which could be to bolster up the witness Boynton’s testimony — to show that he was telling the truth about an irrelevant and undisputed fact.</p> <p>4. “In charging without qualification: ‘And it is the duty of the master to furnish not an absolutely safe place for the servant to work in but a reasonably safe place.’ The error of law being found: (a) In charging in effect that if a man of ordinary care and prudence under all the circumstances would furnish an absolutely safe place to work in, it would not be negligence to leave undone what said man of ordinary care .and prudence would have done.</p> <p>5. “In charging ‘I might be negligent in leaving my horse hitched to the buggy out here, • without tying him, and if that horse did anybody any injury I would not be liable.’ The error of law being found in erroneously defining the proximate cause. If I negligently cease to control a dangerous and unreasoning instrumentality which belongs to me, in a public place, and damage ensues to some one as a direct consequence of my negligence, I am liable.</p> <p>6. “In charging that ‘If the master furnishes a place and it is defective to such an extent that a man of ordinary prudence, care and reason can see for himself that it is' defective, knows the danger, and after knowing that he undertakes to operate, why he assumes that risk. I say that he assumes it although the master directs him to go and perform that work.’ The error of law being found in making knowledge of the danger on. the servant’s part the sole criterion of his negligence, or assumption of risk, whereas the correct legal principle is that if a person of ordinary care and prudence under all the circumstances, would undertake to operate with knowledge, such person does not assume the risk.</p> <p>7. “In charging ‘It might not ‘be negligence for me to undertake to jump over that gate out there, but if I had one leg, it might be negligence for me to undertake to do it.’ The same being a thinly veiled charge upon the facts, it being in evidence that plaintiff’s intestate only had one-leg when he was killed.</p> <p>8. “In not charging the17th request to charge of plaintiff,. viz.: ‘A promise by master to remedy a defect after notice or protest, tends to rebut the inference of waiver of the defect by the servant’s remaining in the master’s service after knowledge. If the servant continued in discharge of his duties, relying on the master’s promise to. remove a defect, he could not be said to have waived such defect. The jury is the proper tribunal to determine this question in, the case.’ Whereas it is submitted that the request stated a correct proposition of law applicable to the facts in this case, it being in evidence that plaintiff’s intestate protested to defendant about the unsafe place where he met his death, and defendant promised to remedy the defect.”</p> <p>cite: As to assumption of risks: 87 S- C. 218; 82 S. C. 149; 97 Am. St. R. 877. Remaining in service after promise to repair: 53 S. C. 363. Charge on facts: 79 S. C. 97; 40 L. R. A. 7.81; 73' S. C.. 236. .</p> <p>Mr. Smith cites: Objection must be made to testimony before it is admitted: 53 S. C. 360. Testimony responsive to allegations in the complaint is competent: 60 S. C. 381; 61 S. C. 329, 456; 66 S. C. 69; 70 S. C. 8; 78 S. C. 485. Kind of place master must fur-wish: 70 S. C. 440; 71 S. C. 58; 72 S. C. 97, 411; 76 S. C. 284; 75 S. C. 303; 69 S. C. 109. Request refused was on the facts: 61 S. C. 563; 47 S. C. 523.</p>

<p>Before W. B; Gruber, Special Judge, Cherokee, June term, 1910.</p> <p>Action 'by Joseph McBrayer against Virginia-Carolina Chemical Company. Plaintiff appeals.</p> <p>Mr. Hardin cites: Qioestion of negligence of defendant is res judicata: 43 S. C. 221, 246 ; 45 S. C. 319; 60 S. C. • 58. Judge could not lawfully hold that the contributory negligence of plaintiff or his assumption of risks was the proximate cause of his injury: 44 S. C. 317; 86 S. C. 534. Nor could he so hold under the evidence: 82 S. C. 549; 84 S. C. 364; 97 Am. St. R. 877; 1 Labatt 1237, 1052, note bb., 1239. 'Under facts here doctrine of assumption of risks cannot avail defendant: 24 N. W. 311; 67 N. W. 799; 10 Ind., 554; 1.Labatt, sec. 2; 84 S. C. 286.</p> <p>Messrs. Sanders & DePass cite: Who are fellow servants: 71 S. C. 56; 76 S. C. 539. When servant is guilty of contributory negligence in obeying orders of master: 82 S. C. 549; 85 S. C. 372.</p> <p>cite: Where plaintiff admits the defense by his evidence nonsuit is proper: 23 S. C. 289; 46 S. C. 216; 53 S. C. 362; 29 S. C. 100; 44 S. C. 318; 80 S. C. 539; 81 S. C. 522, 46 S. E. 674; 72 S. C. 242, 348; 80 S. C. 232; 86 S. C. 116. Servant knew the danger and assumed the risks: 68 S. C. 55; 73 S. C. 498; 71 S. C. 56; 85 S. C. 363; 53 U. S., L. Ed. 281; 77 S. C. 328; 55 S. C. 483.</p>

<p>Before Memminger, J., Spartanburg, March, 1909.</p> <p>Action by Southern Railway — Carolina Division against J. L. Howell. Defendant appeals.</p> <p>cite: Issue of estoppel is for jury: 79 S. C. 269; 63 S. C. 39; 81 S. C. 332; 52 S. C. 408; 84 S. C. 429; 82 S. C. 35 ; 79 S. C. 368. The law of estoppel: 88 S. C. 24; 67 S. C. 451; 84 S. C. 430; 31 S. C. 135; 77 S. C. 425.</p> <p>cite: There is no evidence of estoppel: 79 S. C. 266; 16 Cyc. 726, 734; 93 U. S. 335. Nor of abandonment: 1 Cyc. 4; 87 S. C., 71.</p>

Before Wieson, J., Greenwood, October, 1910. Action- 'by Belle Yoe against Savannah River Power .Company. Plaintiff appeals from order of nonsuit. Messrs. Tillman & Watson cite: Justifying trespass by proof of condemnation is not admissible under general denial: 58 S. C. 30; 48 S. C. 588; 69 S. C. 229. As to the construction of the agreement: 89 N. E. 272; 14 Cyc. 1201; 106 N. W. 102; 71 S. C. 530.

Before Aldrich, J., Charleston, May, 1910. Two actions by Farmers & Spinners Cotton Company against the Atlantic Coast Line R. R. Go., -and two actions by Middleton and Ravenel against same defendant. Defendant appeals. The former cite: What was place of delivery under bill of lading: 11 S. C. 158; 50 S. C. 129; 72 S. C. 44; 77 S. C. 483. Sudden and unusual press of business relieves carrier of delay in delivering: 73 S. C. 9; Moore on Car. 252.

<p>Juey. — A trial Judge does not abuse his discretion in refusing to continue a case on the ground that one of the jury commissioners is the father-in-law of the plaintiff, and the usual close ties in such relationship exists in this case, where it appears the jury box was filled before the cause of action arose, that the commissioner did not have the case in mind when drawing the jury and no objection was made to his participating in drawing it. Duty of litigant in respect to drawing jurors in cases where he is related to a jury commissioner stated.</p> <p>State v. McQuaige, 6 S. C., 429, distinguished from this case.</p>

<p>Ruled by the next case, Jenhms v. Atlantic Coast Line R. R. Co.</p>

<p>Before Watts, J.y Greenville, June, 1910.</p> <p>Action by P. A. H. Jenkins against Atlantic Coast Line Railroad Company. Both parties appeal.</p> <p>cites: Both Coast Line and C., N. & L. are jointly liable: 65 S. C. 332; 54 L. R. A. 649; 24 Ency. 764-5 ; 23 Cyc. 1212-3; 79 S. C. 563. A common carrier cannot contract against its own negligence: 28 S. C. 404; 75 S. C. 168. Carrier cannot lease its trains so as to exempt itself from liability: 28 S. C. 404; 72 S. C. 134; 79 S. C. 273; 20 S, E. 191; 41 Am. R. 179; 44 Am.. St. R. 489; 39 S. W. 643; 6 Cyc. 535; Con., art. IX, sec. 3; 82 S. C. 345. Employees were servants of the Coast Une: 26 Cyc. P. & P. 1522; 33 Id, 714; 155 U. S. 333; 114 Fed. R. 100; 52 P. R. A. 207; 37 P. R. A. 33-9; 50 Am, D. 20; 52 Am. R. 191; 56 Am. R. 835; 11 Wall. 591. C., N. & L. cannot limit liability of Coast Line: 32 C. C. A. 295; 164 Fed, 410, 785; 101 U. S. 71; 178 U. S. 153; 33 Cyc. P. & P. 705-727; 23 Ency. 732; 21 Ency. 495-6; 5 Ency. 530-591; White on Per. Inj. on R. R. 813-8. Both roads are joint tort feasors: 33 Cyc. P. & P. 714-26; 23 Ency. 732; 5 Ency. 530-591; 67 S. C. 514; 65 S. C. 341; 34 Am. St. R. 49; 79 S. C. 563. Former judgment for C., N. & L. will not bar suit against Coast Line: 24 Ency. 765; 23 Cyc. 1212-13; 95 U. S. 347; 62 S. 'E. 928; 70 U. S. 1; 101 U. S. 14; 65 S. C. 341; 68 S. C. 55; 32 Fed. 447, 287; 40 Fed. 631; 14 Fed. 558; 75 S. C. 290; 79 S. C. 563.</p> <p>Mr. McLemore cites: The judgment in favor of C., N. & L. is a bar to this action: 23 Cyc. 1106; 24 Ency. 714; 23 Cyc. 1216; Black on Judg., sec. 504; 1 Van Fleet on Former Adj., sec. 1; Big. on Estp. 36-45. The parties are identical: 23 Cyc. 1111-12, 1270; Black on Judg., Secs. 534, 539. The present cause of action is same as the first: Pom. Code Rem., sec. 247; 52 S. C. 175. The former judgment is conclusive: 159 U. S. 21; 158 U. S. 478; 94 U. S. 351; 18 How. 418; 49 S. C. 563; 9 Rich. Eq. 475; 1 Rich. Eq. 301; 50 S. C. 68; 44 S. C. 1; 19 S. C. 254; 81 S. C. 516; 77 S. C. 493; 23 Cyc. 1178; 205 U. S. 122; 152 U. S. 327; 24 Ency. 781. Court in Greenville had no jurisdiction: 47 S. C. 387; 80 S. C. 355.</p>

<p>Before Wilson, J., Greenville, June, 1910.</p> <p>Action by Tewis Segusky against J. H. William's. Plaintiff appeals.</p> <p>cite: 81 S. C. 134; 8 Ency. 419, note 25, 411; 22 S. C. 9; 57 S. C. 227.</p> <p>cites: 57 S. C. 262; 72 S. C. 192; 70 S. C. 429; 31 S. C. 342.</p>

Before Wilson, J., Abbeville, October term, 1910. Action by Enoch Smith against Southern Railway Company. Defendant appeals. Mr. Gary cites: Judgment should be reduced: 81.S. C. 387. cite: Carrier is only liable for loss or damage occurring on its own line: 19 S. C. 353; 36 S. C. 110; 43 S, C. 461; 78 S. C. 42; 85 S. C. 381; 78 S. C. 42; 75 S. C. 321. When penalty attaches: 78 S. C. 42; 79 S. C. 250.

<p>Damages — Contracts—Commissions.—Where a manufacturer of autos for valuable consideration gives one the exclusive agency to sell its cars in a given territory on commission and knowingly during the life of the contract sells cars in the territory. it is liable to such party in action for breach of the contract for the same commissions he was to have on sales made by him.</p>

<p>Before Watts, J., Colleton, February, 1911.</p> <p>Action by G. L. Warren against P. J Wilson. Plaintiff appeals.</p> <p>cite: As to admission against interest: 1 Mills Con. R. 296; 3 Strob. L. 367; 93 U. S. 379; 91 N. C. 172; 37 111. 525; 116 N. Y. S. 461; 24 Fed. R. 437; 10 N. H. 171; 80 Pac. 105. As to the form of the action: 31 U. S. 431; 51 Cal. 559; 15 Cyc. 113; 19 Fla. 652; 50 Me. 139; 29 S. C. 52; 36 S. C. 559; 76 S. C. 313. Defense of statute of limitations must be pleaded: Code of Pnoc. 94; 16 S. C. 378; 22 S. C. 583; 29 S. C. 254; 33 S. C. 303.</p>

<p>Before Prince, J., Williamsburg, December, 1910.</p> <p>Action by Alexander Sprunt & Son against Alexander M. Gordon. Defendant appeals.</p> <p>cite: Demurrer should have been sustained: 3 Hill, 268; 8 Wheat. 217; 16 Pet. 166; 4 Ency. P. & P. 636; 6 Rich. 188; 1 B-ail. 362; 69 S. C. 303; 72 S. C. 137. Defendant should not have been required to elect between the answer and demurrer: 53 S. C. 528.</p> <p>cite: Order requiring defendant to elect is proper: Code of Proc. 164, 165, 169; 135 Am. St. R. 553. Demurrer was properly sustained: 9 Cyc. 711; 39 S. C. 491; 21 Ency. P. & P. 544-5; 28 Ency. 4, 6; 9 Cyc. 723-4; 35 Cyc. 167; 1 Beach on Contracts, secs. 334, 411.</p>

. Before Wilson J., Edgefield, October, 1909. Action by P. H. Corley against Southern Railway. Defendant appeals. Mr. Bvans cites: Mental suffering not accompanied with bodily injury is not recoverable in this case? 82 S. C. 478; 84 S. C. 21; 52 S. C. 326; 57 S. C. 330; 78 S'. C. 559. Passenger must comply with conditions of his ticket: 77 S. C. 361; 26 S. C. 91; 17 L. R. A. 80; 9 L. R. A. 132; 53 La. 201.

<p>Issues — -Foreclosure.'—Defendant is not entitled to a trial by jury in an action for foreclosure of a mortgage on machinery by the assignee when he sets up the defenses, misrepresentation, breach of warranty of the condition of the machinery, failure of consideration, and a counterclaim for damages for fraud and collusion between plaintiff and his assignor.</p>

Before Gags, J., Anderson, February, 1911. Action by A. G. Means against D. B. McPhail in magistrate court for commissions for sale of house and lot made by defendant by means of plaintiff’s plans and services.

<p>Real Property — Corporations.-—Upon the dissolution of a corporation created for benevolent or social purposes, the land paid for by the members and the buildings erected by them is a corporate asset to be divided among the members of the corporation at the date of its dissolution or their representatives, and it does not revert to grantor. Gases considered.</p>

<p>Before Gary, J., Florence, April term, 1910.</p> <p>Action by E. Heckheimer against James M. Allen. Defendant appeals.</p> <p>cite: Notice necessary: 30 Cyc. 670. Dissolution of partnership deprives one member of power to bind others: 30 Cyc. 504, 659, 668; 1 N. & McC. 556; 3 Brev. 183; 3 DeS. Eq. 43; 1 McM. 309; 1 McC.. 16, 388; 1 Pet. 351; 36 Am. Dec. 309; 37 Am. Dec. 616. Plaintiff could only look to the partner who signed the notes he held: 38 S. C. 115; 16 S'. C. 314; 70 S. C. 148; 4 Rich. 69; 56 N. Y. 402.</p> <p>cite: One member of a firm may, after dissolution, make a note for a firm debt: 3 S. C. 510.</p>

<p>Mortgages — Recording—Notice.—The purchaser of a mortgaged chattel, in the absence of express notice, may rely solely on the record. Piling a mortgage for record will not operate as constructive notice to a subsequent creditor or purchaser.</p>

<p>Before Wiuson, J., Berkeley, March, 1911.</p> <p>Action by S. L. Crawford et al. against Atlantic Coast Lumber Corporation. Plaintiffs appeal.</p> <p>cite: It is proper to refer case to master to ascertain the damage: 10 S. C. 491; 37 S. C. 339; 70 S. C. 119; 1 Spelling’s Ext. Rel., sec. 964; 3 Brev. 75; 73 S. C. 373; 95 Fed. 941; 16 Eney. 439. Injunction bond is the only right of action defendant has: Spelling, sec. 493; 19 S. C. 338; 133 Fed. 736. Is plaintiff liable where dissolution is only partial? 19 La. Ann. 78; 15 Id. 81; 39 Id. 149. Is plaintiff liable at all? Spelling, secs. 948, 956; 43 S. C. 398; 39 S. C. 437; 75 Fed. R. 867; 36 N. J. Eq. 97.</p> <p>Messrs. Willcox & Willcox and Davis cite: This Court will not consider a point not raised on circuit: 43 S. C. 304; 44 S. C. 33; 64 S. C. 339, 543; 74 S. C. 306; 75 S. C. 35, 455; 76 S. C. 574; 78 S. C. 537. Reference was to assess damages with no reference to bond: 19 S. C. 330; 39 S. C. 437; Lawson’s R. R. & P., sec. 3704; 39 Am. St. R. 716. Injunction was dissolved as to rights of defendant: 65 S. C. 157. And plaintiff is liable for damages resulting: 3 High, on Inj., secs. 1670, 1673, 1667; 33 Cyc. 1039. Compensation is for actual loss: 39 S. C. 437; 39 S. C. 447; 19 S. C. 333; 3 High on Inj., secs. 1663, 1673. Damage to timber left standing is recoverable: 19 S. C. 333.</p>

Before Klugh, J., September, 1909, and Ernest Moore, Special Judge, January, 1910, York. Action by Chris. L. Kennedy and Porter B. Kennedy, formerly members of Hill, Kennedy & Company, against W. L. Hill. Both parties appeal. Mr. Marion cites: Recitals as to amount contributed to partnership capital may be explained: 22 Ency. 86; 86 Ind. 503. Partnership accounting: 22 N. Y. 178; 10 Rich. 64. Interest on partnership account: 22 Ency. 125-6 ; 3 Mason 284.

Before Ernest Moore, Special Judge, Lancaster. Action by the Seneca Company against E. L. Crenshaw. Defendant appeals. cites: Absence of seal from deposition envelope vitiates it: 72 S. C. 222; 39 S. C. 410. Issue of return of goods and acceptance by seller is for fury: 81 S. C. 347; 65 S. C. 139; 70 S. C. 380; 52 S. C. 197. Pleadings are competent to form admissions: Elliott on Ev., sec. 237; Green, on Ev., sec. 178; 30 S. C. 565 ; 85 Am. Dec. 559; 29 L. ed. U. S. 393.

<p>Petition by the Atlantic Coast Line Railroad Company in the original jurisdiction of this Court for a writ of mandamus against B. L. Caughmau, John G. Richards, Jr., and G. McD. Hampton, constituting the Railroad Commission for this State.</p>

<p>1. Setting Aside Service on Corporation. — There is no error in refusing a motion to set aside the service of a summons and complaint on a corporation when the person served testifies he was its agent and mailed the papers served on him to the corporation office and there is other proof tending to show the corporation held him out as its agent.</p> <p>3. Appeal — New Trial.- — Objection that grounds urged on appeal to set aside a verdict were not mentioned in the motion papers served should be made on Circuit to merit consideration on appeal.</p> <p>3. Ibid. — Judgment by Default — Special Damages. — Appeal does not lie from judgment by default except where the error goes to the foundation of plaintiff’s alleged cause of action or to the authority of the Court to render the judgment. Under a complaint alleging only general damages and nothing on which special damages may be founded, proof and recovery of special damages vitiates a judgment by default.</p> <p>4. Judgment by Default — Damages—Verdict.—Where the damages claimed in a default case are unliquidated- and the proof although undisputed is such that men might reasonably differ as to the amount it is error to direct a verdict.</p>

Before Shipp, J., Abbeville, September, 1910. Action by Bessie Taggart et al. against Reese Taggart. Defendant and plaintiff, Lonnie Sailes, appeal. cites: Hearsay evidence is competent to prove marriage, etc.: 2 Brev. 461; 3 Pet. 621; Wig., sec. 1481. Proof here establishes marriage: 33 S. C. 82; 10 S. C. 503; Wig., secs. 2083.

Before Shipp, J., Richland, October term, 1910. Action by May W. Farmer, administratrix of James P. Farmer, against Wade H. Sellers. Defendant appeals. cite: That the plaintiff was the prosecuting witness in the murder case was competent because alleged in the answer and to show bias: 61 S. C. 292; 73 S. C. 386; 74 S. C. 102.

Before Klugh, J., Clarendon, February, 1910. Action by Walker B'. Hunter against D. W. Alderman and Sons Co. Plaintiff appeals. cites: Issue of fellow-servant was for jury: 71 S. C. 56; 76 S. C. 549; 78 S. C. 383; 77 S. C. 553. Master is liable if injury was caused by act of servant under order of master: 84 S. C. 389. Plaintiff should recover if negligent, if his negligence ivas not the proximate cause of the injury: 51 S. C. 222.

Before-, J., Fairfield, -. Action by Annie Coogler et al. against Sallie Crosby et al. Plaintiffs appeal. cite: Record does not show service on minors and judgment is not binding on them: Code of Proc. 155. sub. 3; 1.7 S. C. 439; 33 S. C. 187; 7 Ency. 786-7; 76 Am. Dec. 663; 39 Fed. Cas. 17; 95 Mo. 507; 13 S. C. 301. As to presumption of regularity: 18 Wall. 350; 59 S. C. 504; 34 Cal. 391; 10 Ency. Ev. 769; 4 Fed. Cas. 114a. As to construction of will: 1 Dess. 331, 499; Bail.

<p>1. Cities and Towns — Streets.—All powers granted to cities and towns by the General Assembly under the sanction of the Constitution are to be exercised as public and governmental functions. So the construction and operation under legislative authority of electric light plants used for lighting the streets and for supplying the citizens with electric current for domestic purposes is a corporate and1 not a private purpose.</p> <p>2. Ibid. — A city is liable for injury to one on the street caused by his coming in contact with a metal chain hanging-' by the side of an electric light poll, used in lowering the arc light on the street, heavily charged wit-h electricity, under section 2023 of the Code of 1902, making cities and towns liable for damages caused by defects in the streets.</p> <p>3. Ibid. — Children—Issues.—It should not be laid down as a proposition of law, applicable to all cases, that playing in a street by boys and girls while they are still of the age of youthful sportiveness is an illegitimate use of a street. So it is held whether a boy of seventeen is making an illegitimate use of a street by playing in it and whether he is guilty of contributory negligence while so playing in taking hold of a chain suspended from an arc light, are issues for the jury.</p>

Before Gary, J,, Colleton, March term, 1911. Action by J. B. Pinckney, by guardian, against Atlantic Coast Riñe R. R. Co. Plaintiff appeals. Messrs. Howell & Gruber cite: Servant may recover for injury caused by combined negligence of master and fellow servant: 79 S. C. 512. cite: It is no excuse for the violation of a rule that the engineer promised not to back the cars on the siding: 11 Ohio C. C. 553; 43 R. R. A. 305.

<p>Before Wilson, J., Abbeville, October term, 1910.</p> <p>Action by J. C. Miller against Hamilton Brown S'hoe Co. Plaintiff appeals.</p> <p>Evidence as to previous acts inadmissible; 1 N. & McC. 270; 2 Id. 511; 2 Bail. 115; 25 Cyc. 513, 516;-82 Ind. 554; 32 Oen, Dig., secs. 307-8, title Bibel and Slander; 3 Hill 175; 28 S. E. 655. Opinion on question in issue is incompetent: Green, on Ev., sec. 440; 59 S. C. 318; 3S S. C. 400; 59 S. C. 318.</p> <p>cites: Opinion of others expressed to defendant is competent: 10 Rich. 414. Opinion of witness that plaintiff was under influence of drug is competent: 19 S. C/68; 46 N. E. 623; 94 N. W. 938; 46 N. E. 613; 47 la. 17; 68 N. E. 289; 51 N. E. 447; 47 N W. 568; Wig. on Ev., sec. 1974.</p>

<p>Before MemmingER, J., Hampton, Fall term, 1910.</p> <p>Action by Robert R. Sizer & Co. against B. H. Dopson and Charleston and Western Carolina Railroad Company. Plaintiff appeals.</p> <p>The two latter cite: As to measure of damages: 170 U. S. 468; 1 Bay 270'; 1 N. & McC. 221, 237; 6 Rich. 310; 20 S. E. 509; 33 S. C. 365; 27 S. C. 240. Demand not necessary after conversion: 47 S. C, 335; 48 S. C. 421; 5£ S. C. 488; 60 S. C. 103; 72 -S. C. 458.</p> <p>cite: Plaintiff could recover actual damages: 78 S. C. 421; 80 S. C. 49. And any damages resulting from taking and holding: 93 111. App. 112; 71 S. C. 6; Code of Proc., secs. 283, 299; 83 S. C. 458. This Court cannot inquire into sufficiency of evidence not objected to: 23 S. C. 286; 80 S. C. 9, 50; 84 S. C. 165; 65 S. C. 356, 510- 71 S. C. 104; 69 S. C. 110- TO S. C. 107. Demapd not necessary after conversion: 45* S. C. 388; 70 S. C. 148.</p>

<p>Before Watts, J., Charleston, November, 1910.</p> <p>Action by Emmett T. West ef al. against Gertrude I. Smith, in her own right and as executor, Mary Brown et al. Plaintiffs appeal.</p> <p>cite: Original and substantial gifts: 34 E. J. Ch. 65; L. R. 2 Eq. 479; 54 Me. 232; Gardner on Wills 462; Gray’s Rule vs. Perpetuities, par. 108. Contingent gifts: 2 Black. Com. 169; 20 Bncy. 840; 2 Wash. R. P. 560; Tied, on R. P., sec. 506; 20 S. C. 71; 7 Rich. Eq. 125; 9 Rich. Bq. 459; 10 S. C. 385; 43 N. Y. S. 575; 94 Me. 429 ; 30 Ency. 721, 778; 106 B. R. 670; 26 'S. C. 470; 75 W. 26; 65 S. E. 851;.20 S. E. 296; Dud. Eq. 201; 30 S. C. 188; 69 S. C. 503; 76 N. E. 1043; 48 S. E. 633; 37 Me. 3'63; 51 S. E. 780; 56 S. C. 7; 62 S. W. 1033; 86 S. C. 1; 21 S. C. 513. Vested remainders: 87 S. C. 55. Vested remainders subject to be divested: 48 S. E. 633; 62 S. W. 1033; 2 Rich. Eq. 78; 4 Rich. Eq. 297; 87 S. C. 55; 128 N. Y. Supp. 230. Contingent remainders are not transmissible: 2 Strob. Eq. 59. Upon default of remaindermen devise reverts: 50 S. C. 258. Original and substitutionary gifts distinguished: 2 D. & S. 484; E. R. 2 Eq. 479, 442; Gray’s Rule vs. Per. Par. 108; 21 S. C. 529.</p> <p>cite: The remainder here is vested: 35 S. C. 59; Code 1902, sec. 2483; 3 Strob. Eq. 223; 4 Rich. Eq. 297. Law favors vested remainders: 5 Wall. 268; 2 S. C. 78; 50 S. C. 208; 20 S. C. 75; 30 S. C. 184. Vested remainders defined: 3 Rep. 19; 2 Black. Com. 168; 4 Kent 203; 2 Sand. Ch. 533; 5 Paige 466; 2 Wash. R. P. 587, 1541; 4 Ridi. Eq. 297; 1 Strob. Eq. 44; 2 Hill Ch. 431; 10 S. C. 387; 26 S. C. 451; 50 S. C. 208; 87 S. C. 64. A vested interest is transmissible: 12 Rich. 122; Rice Eq. 330; 26 S. C. 471; 78 S. C. 115. Effect of "and to the issue of any deceased child:” 44 S. C., 512. Life tenant may inherit in his lifetime interest of remainder-man: 27 S. C. 215. Similar devises construed: 1 Hill Ch. 358; Dud. Eq. 201; 3 Rich. Eq. 559; 15 S. C. 430; 16 S. C. 221; 17 S. C. 53; 21 S. C. 513; 44 S. C. 511; 66 S. C. 155; 56 S. C. 7; 69 S. C. 285; 72 S. C. 181,115; 87 S. C. 55.</p>

<p>Petition in the original jurisdiction of this Court by J. S. Verner and A. R. Taylor for injunction against W. F. Muller, A. B. Campbell, J. E. Heise, E. M: Hook and Charles Kinsler.</p>

<p>Before Prince, J., Sumter, November, 1910.</p> <p>Action by T. N. Griffin against Atlantic Coast Bine Railroad Company. Defendant appeals.</p> <p>Mr. McLemore cites: Carrier may contract against its liability for loss by fire: 77 S- C. 467; 78 S. C. 103; 33 Cyc. 1330; 85 S. C. 165, 405, 409>; 164 U. S. 403; 175 U. S. 91; 68 S. W. 411; 24 R. R. A. 647; 70 R. R. A. 930. No act of waiver by carrier: 63 S. C. 197; 88 S. C. 221; 70 S. C. 23; 29 Ency. 1095, 1096; 29 Ency. 1097; 76 S. C. 476; 78 S. C. 103; 81 S. C. 567; 87 S. C. 258.</p>

<p>1. Partition. — The Court may approve partition of personal property followed by possession, among minors who have reached years of maturity, if the circumstances were such as would have warranted the Court in making such division on application, notwithstanding objection by one participant.</p> <p>2. Rents. — An administrator, with the will annexed is justly allowed commissions for collecting and paying out rent from lands’ belonging to the devisees not passing under the will, where he administered at their request and one provision of the will was that the devisees should be educated out of the income from the property.</p>

<p>Before Prince, J., Clarendon, November term, 1910.</p> <p>Action by Northwestern Railroad Company of South Carolina against Samuel Mr Colclough. Defendant appeals.</p> <p>cite: Courses and distance-govern in case like this: 57 N.' W. 11;'3 Pet.’92; 65 Am. Dec. 3'34; 42 Conn. 69;'5 Cyc. 923; 53'Tex. 496; 17 Mass. 207; 72 N. Y. 94; 59 S. C. 115; 37 S. C. 240. First taker had a life interest only: 82 S. C. 541; 9 S. E. 804; 16 S. C. 545; 7 S. C. 53. When deed may be considered execution of a power: 48 S. C. 518; 126 Ga. 232. Doubtful boundary line may be ñxed by parol: 136 U. S. 651; 4 Wheat. 513 ; 8 Ency. 83. Unjoining defendant from committing acts of ownership was unlazvful: 144 U. S. 119; 4 S. C. 388; 27 S. C. 408. If a zvill is a doubtful execution of a pozver, it will be construed as not doing it: 14 S. C. 540 ; 16 Ency. 203. Acceptance under 'grant estopped railroad from claiming under its charter: 24 S. C. 60.; 84 S. C. 427; 207 U. S. 79; 59 S-. C. 371; 69 S. C. 481. A deed by an individual does not estop him acting in a representative capacity: 16 Cyc.’712; 68 Ga. 490; 73 Ga. 749; 114 La. 699. Wife may appoint her husband trustee under marriage settlement: 39 Ela. 603; 30 Ga. 446 ; 4 A. & E. Am. Cas. 405. Statute would not begin to run until death of life tenant: 82 S. C. 535 ; 86 S. C.'267. Plaintiff should not recover on imperfection of defendant’s title: 56 S. C. 274. Fee vested in trustee: 78 S. C. 143; 78 S. C. 335; 16 S. C. 545.</p> <p>cite: Use 'of track is notice of possession: 85 S. C. 135. After entry under grant from life tenant, the remainderman can only get compensation: 21 S. C. 421; 59 S. C. 371; 69 S. C. 481. Finding that plaintiff is entitled to one hundred feet on each side is equivalent to ñnding by jury: 42 S. C. 138; 67 S. C. 35; 12 S. C. 270.. Use of track is notice o,f ownership: 67 S. C. 499.</p>

Before Wieson, J., Abbeville, October term, 1910. Action- by Georgia H. Busbee and W. H. Busbee against Western Union Telephone Company. Defendant appeals. cite: Where evidence explains delay wilfulness should not be recovered: 84 S. C. 478; 87 S. C. 316. No damage for disappointment or annoyance: 70 S. C. 418; 81 S. C. 238. Telephone company should have notice of close ties between aunt and niece: 81 S. C. 90. No citations.

<p>1. Specific Performance. — The decree in question held to have adjudicated the right to specific performance, provided the respective titles to the lots to be exchanged were found to be marketable; and as the decree provides a reference to ascertain the facts in regard to the title, it cannot be said to be a final adjudication of the issue of specific performance.</p> <p>£. Ibid. — Amending Notice. — Discretion.-—Where an order provides that both parties in a suit of specific performance for exchange of lots should file their proposed deeds within a certain time, and that both parties should in the same time file objections to the title of the other, and uses “defendants” in speaking of one side, either defendant may serve objections to plaintiff’s title. Such objections are in the nature of pleadings, and after having -been filed in time may be amended by adding allegations of other objections since discovered, and there was no abuse of discretion in permitting -such amendments here.</p> <p>3. Negligence — Laches.—Both parties in this proceeding are equally guilty of negligence or laches in not bringing the issues to adjudication; hence the plaintiff cannot insist that defendants have been so negligent as to deprive them of the right to amend this objection.</p>