Volume 90 — South Carolina Reports

<p>Before Prince, J;, Hampton, March, 1911.</p> <p>Action by C. S. Terry against State Mutual Life Insurance Company of Rome, Ga. Defendant appeals.</p> <p>cites: Failure to pay premium caused policy to lapse: 28 N. J. Eq. 167; 177 Fed. 482; 81 Ind. 300; 24 Mich. 268; 93 U. S. 24. Relation of insured to Mutual Co.: 49 S. C. 402; 62 S. C. 192. Effect of report of referee: 1 Strob. Bq. 272; 6 Ricli. Eq. 313, 320; 20 S. C. 295. Interest is not recoverable under pleadings here: 47 S. C. 176.</p>

<p>Officers — Commission.—Where an act of the legislature directs certain county officers 'to be appointed by the Governor, on the recommendation of the majority of the legislative delegation from that county, and the Governor declines to appoint and commission those so recommended, they are not entitled to be paid by the county treasurer for services rendered in discharging the duties of such office.</p>

<p>Before Shipp, J., Fairfield, April, 1911.</p> <p>Action by Minnie M. Dixon et al. against Mannie M. Pendleton. Plaintiffs appeal.</p> <p>Mr. W. D. Douglass cites: Issue primarily means lineal descendants: 3 Hill 553; 9 Rich. Eq. 306; Riley’s Eq. 301; 37 S. C. 493; Dud. Eq. 301. The burden is on him who alleges a different meaning: 13 Ves. Jr. 340; 3 Ves. Jr. 375; 19 E. R. A. 473. When surrounding circumstances may be considered: 36 S. C. 64; 51 S. C. 331; 65 S. C. 390; 43 S. W. 773. The words must be construed in their technical sense: 3 Rich. Eq. 574; 13 N. J. Eq. 168; 33 Miss. 604; 33 Am. St. R. 731; 44 S. C. 533; 11 E. R. A. 308; 76 N. Y. Supp. 703; 15 Exch. 373; 33 Eng. R. 856; 7 Ves. 533; 59 Eng. R. 834; 4 S. C. 76; 134 N. Y. S. 134; 7 Rich. Eq. 135'; Dud. Eq. 301.</p> <p>cite: If Circuit Court is in error then the division is per stirpes: 30 Ency. 736; 3 Jar. 761, note; 6 Rich. Eq. 41, 135, 399. If testator meant immediate children then defendant is entitled to all the land: 6 Rich. 401; 50 S. C. 10; 86 S. C. 338.</p>

<p>Before Watts, J., Abbeville, March, 1911.</p> <p>Action by W. E. Stelts against W. B. Martin- and Pearl M. Beckwith. Plaintiff appeals.</p> <p>cites: The limitation applicable to this case is twenty years: 18 S. C. 473; 19 S. C. 263; 26 S. C. 515; 27 S. C. 267; 30 S. C. 346; 42 S. C. 177; 54 S. C. 597; 6-2 S. C. 240; 64 S. C. 436; 7l S. C. 391. If the six year limitation applies, the admissions of defendants take the case out of the statute: Code of Proc. 123; 29 S. C. 254; 80 S. C. 157; 2 Bail. 278; 38 S. C. 300; 51 S. C. 134. Delivery for record is prima facie evidence of delivery: 81 S. C. 455. Plaintiff could testify as to transaction between deceased and a third person: 78 S. C. 23; 95 S. C. 279; 44 S. C. 25; 32 S. C. 511; 56 S. C. 385; 55 S. C. 510; 26 S. C. 160.</p> <p>cites: Under facts here Court should hold the mortgage paid: 2 Jones Mtg. 30; 22 Ency. 596; 30 Cyc. 1276; 11 Rich. Eq. 283; 2 McC. C. 438; 1 Rich. Eq. 55; 5 S. E. 602; 15 Rich. 34; 30 Cyc. 1268; 22 Ency. 589; 1 Hill on Mtg. 504; 19 Pick. 227; 1 N. W. 6-88; 43 Atl. 469. Paper here zvas not entitled to record: 22 S. C. 332; 49 S. C. 242; 71 S. C. 283, 28 S. E. 329; 21 S. E. 735; 54 S. C. 918, 41 S. E. 1003. If no date is fixed for payment of note, it is due at once: 4 Ency. 133; 119 Mass. 79; 3 Rich. 182. After debt is barred a mere acknozvledgment zvill not take it ozit of the statute: 2 Bail. 276; 38 S. C. 306; 51 S. C. 141. Admissions not made to the debtor do not avail: 19 Ency. 316. Mortgage zvas invalid because not made for the benefit of the married zvoman’s estate, but to defraud creditors: 42 S. C. 339; 30 S. C. 242; 32 Id. 456; 37 Id. 354; 24 Id. 461; 26 Id. 517; 27 Id. 525; 55 S. C. 338; 38 S. C. 437. Plaintiff can recover only penal amount of bond: 34 S. C. 241; 27 S. C. 171.</p>

<p>1. Wills. — Under the provisions in a will devising' all of testator’s property to his two sons — and providing further, that “it is my wish that my sons shall take care of my * * i: wife and allow her to live at my house,” and at her death divide the property between them, the sons take the property, subject to the charge for the care of the mother.</p> <p>2. linn. — Watvek.—The widow’s moving to another house and there living does not constitute waiver or abandonment of her claim.</p> <p>3. Iiiid. — One accepting' a devise so burdened assumes the personal obligation to take care of the widow during- her life, and she is entitled to a judgment against the devisee for the aggregate arising from an allowance of a reasonable sum for each year’s support. In arriving at this amount, the condition in life of the parties, the value of the property, and the intention of the testator are important elements.</p> <p>4. Ibid. — The income and the land itself is liable for this charge of the care of the widow.</p> <p>5. Ixcome. — In absence of proof of income rental value may be taken as the measure of income.</p>

Before DeVoRE, J., Richland, May, 1910. Action by Minnie C. Lundy, administratrix of Charles Lundy, against Southern Bell Telephone and… Held: as a matter of law, to be negligence on the part of the company to suspend wires in such a position that, in the event of their breaking or falling, they will become charged with a dangerous current of electricity from wires underneath.’ “The error being: (a) That he charged the jury as to matters of fact, when he stated that the…

Before Watts, J., Abbeville, March term, 1911. Action by H. M. Bouchillon, administrator of Strong Bouchillon, against Charleston & Western Carolina Ry. Co. Plaintiff appe'als. Mr. Graydon cites: Running a train backward at a rapid rate of speed carries the issue of wilfulness to the jury: 66 S. C. 77; 7á S. C. 135; 63 S. E. 515; 65 S. C. 444; 2 Thomp., sec. 1873. Contributory negligence is no defense to a wilful tort: 64 S. C. 494; 73 S. C. 467; 85 S. C. 463.

<p>1. Landlord axb Tenant — Evidence.—Where a tenant proves damages for having to move out of a building without preparation he would be entitled to a verdict, if the removal was caused by wrongful act of the landlord; but where the jury has found for the landlord, ruling out evidence that the tenant’s business at that time would have been more remunerative than usual on account of a strike is of no consequence.</p> <p>2. Ibid. — Ibid.—Wilfulness.—In such action, that the management of the corporation landlord and the corporation tenant were on good terms; that the landlord bank had allowed the tenant to overdraw its account; that the landlord had been informed by its grantor that the tenancy was from month to month; that the president of the landlord had no ill will toward the tenant; that he took the advice of counsel and acted thereon in the belief that he was within his legal rights, was competent as tending to show the landlord acted without wilfulness or malice.</p> <p>3. Ibid. — Ibid.—Corporations.—The admission of the representative of a corporation through whom its contracts are made that its tenancy was from month to month is competent against the corporation.</p> <p>4. Ibid. — Charge.—Under the issues here the appellant should not complain of an instruction that the issue of the manner of its tenancy was a difficult and perplexing- question and the pivotal one in the case.</p> <p>Wright v. Willoughby, 79 S. C. 438, distinguished from this case.</p> <p>5. Ibid. — A tenancy from year to year may be changed to a tenancy from month to month or to a tenancy at will by act of the parties.</p> <p>6. Ibid. — The definition of a tenancy at will construed to mean that to constitute a tenancy at will there must not only be a tenancy for an indefinite time, but it must be understood to be subject to the will of the landlord. The statutory provision that a tenancy shall be for one year unless stipulated for a shorter period does not affect such tenancy.</p> <p>7. Ibid. — Instruction that a tenant at will is entitled to reasonable notice to quit, and a tenant from month to month to not less than thirty days’ notice, is favorable to appellant.</p> <p>8. Punitive Damages. — Since there was undisputed evidence of actual loss suffered by plaintiff, and the jury found for defendant on the issue of actual damages, the exception as to the charge on punitive damages becomes unimportant.</p> <p>9. Evidence — Wh-fulness.—The advice of counsel may be taken into consideration on the issue of whether one party has wilfully violated the rights of another.</p> <p>10. Ibid. — Ibid.—Presumptions.—In an action of tout, the presumption that every one knows the law and will obey it may be weak or strong, according to the clearness or obscurity of the law or other circumstances, and may be weighed by the jury on the issue o'f wilfulness.</p>

<p>1. Trusts — Remaindermen.—.Where bank stock is left in trust to pay the income, profits or interest to one for life, with corpus to remain-dermen, under the terms of this will, all accumulated values of the stock by retention of dividends by the corporation, not paid to the ' life tenant, pass to the remaindermen under her will. Neither the life tenant nor remaindermen are estopped by the acts of the life tenant.from claiming such accumulated profits.</p> <p>2. Where a trust fund is lost in part by reason of deficient security, without fraud on part- of trustee, the loss should fall proportionately on the life tenant and remaindermen.</p>

<p>Before W. C. Davis, Special Judge, Sumter, April, 1910.</p> <p>Action by George M. Saunders against Southern Ry. Co., in the court of Magistrate H. Harby. From Circuit order affirming judgment of magistrate court, defendant appeals on the following exceptions:</p> <p>I. “Because his Honor committed error of law in holding that there was no sufficient evidence to show that the consignee agreed to any condition of the receipt or bill of lading for the goods, or that he acted upon said bill of lading, there being no evidence upon which to base such findings, as it is demonstrated by the record that the consignee did agree to the terms of the bill of lading by .accepting same and filing it as a part of his claim, and that he did act upon it in that he put it in evidence as his contract with the defendant, the railway company, in this case.</p> <p>II. “Because his Honor committed error of law in holding, ‘Even if he was bound by all of its conditions, still the verdict should stand, as there is ample evidence to show that the value of the goods, at the point of shipment, including the freight, was at least as muda as the amount of the claim filed.5 Whereas, there was absolutely no legal evidence to show that the value of the goods, at the point of shipment, was over fifteen and 15-100 dollars — with the freight added, it was only fifteen and-50-100 dollars — whereas, the claim filed was for sixteen dollars.</p> <p>III. “Because his Honor erred in holding that ‘substantial justice has been done between the parties;’ whereas, a penalty of fifty dollars was imposed1 upon the defendant by reason of an erroneous judgmenat being rendered for the alleged value of the goods at the point of destination with fictitious, speculative profit added thereto.</p> <p>IV. “Because his Honor erred in sustaining the magistrate in allowing the plantiff to testify, over the objection of the defendant, as to the market value of the good's at Clare-mont, S. C., the point of destination, or the nearest point at which the goods had a market value. Whereas, he should have ruled out such testimony as irrelevant — value áccord-ing to the bill of lading put in evidence by the plaintiff— being computed in case of loss or damage at the time and place of shipment.</p> <p>V. “Because his Honor erred in sustaining the magistrate in allowing the plaintiff all the way through the record to testify that the goods were of the value, and were worth 15 to 20 per cent, more than he paid for them at the point of shipment, to wit, twenty dollars. Whereas, he should have ruled out all such testimony as irrelevant, the 'contract having fixed the 'basis of valuation at the point of shipment, to wit, fifteen dollars and fifteen cents.</p> <p>VI. “Because his Honor erred in sustaining the magistrate in refusing defendant’s fifth request to charge, which was as follows: ‘That under the bill of lading, or contract, the amount of any loss or damage, for which the carrier becomes liable, Sha>p ©^computed at the value of the property at the time and place of shipment. Consignee' cannot add to this the value at Claremont, S. C., or the point of destination, and then add freight charges.’ Whereas, he should have charged the said request as it contained the stipulation in the bill of lading.which the plaintiff acted under, and which plantiff put in evidence as his contract with the defendant in this case.</p> <p>VII. “Because his Honor erred in sustaining the magistrate in refusing to charge.the defendant’s seventh request to charge, which was as follows: ‘If you believe the plaintiff accepted this, bill of lading in evidence as the contract in this case, and the value of the property shipped thereunder is fixed at the value at the point of shipment, plaintiff is bound by that value, and can only recover the value at Camden. If he accepted the bill of lading and acted upon it he is bound by its terms.’ Whereas, said request contained a sound proposition of law applicable to this case, and the jury should have been thus charged.</p> <p>VIII. “Because his Honor erred in sustaining the magistrate in refusing to charge defendant’s third request to charge, which was as follows: ‘The goods may, no doubt, be left in the hands of the carrier after reaching their destination and the consignee has had opportunity to take them, as that the further duty of the carrier with reference thereto is only that- of an accommodation or gratuitous bailee, or custodian, with no right on the part of the carrier to collect charges for keeping, and no duty to exercise more than slight care — in such case the carrier will be liable, it is said, for only gross negligence.’ The magistrate modified the request, charging the jury that the carrier is required to use ordinary care, and by striking out the word ‘gross’ and inserting ‘ordinary.’ Whereas, the said request was a sound proposition of law and pertinent to the circumstances of.the case.</p> <p>IX; “Because his Honor erred in sustaining the magistrate who refused to charge defendant’s fourth request to charge,' which was as follows: ‘If you believe, from the preponderance of the evidence, if such evidence there be, that the freight was tendered1 by the carrier and was receipted for “by the consignee, and the charges thereon paid by the plaintiff, and that there was an agreement on the part of Mr. Hughes, the carrier’s agent, as a personal matter, to hold the goods a day or two, or for any time subsequent, to enable the consignee to send for them, at consignee’s convenience, and this was against the rules of the carrier, then, I charge you the act of the agent was beyond the scope of his authority, and the carrier would be released1 from his responsibility to the consignee.’ Whereas, he should have charged the jury the said request, as it was a sound proposition of law and applicable to the case.</p> <p>X. “Because his Honor erred in sustaining the magistrate who refused to charge the jury as requested, that if they believed, from the preponderance of the testimony, that it was the contributor)'- negligence of the plaintiff, which was the proximate cause of the loss, they should find for the defendant. Alnd in limiting his charge to the jury solely upon the issue of the negligence of the defendant, when the answer set up the contributory negligence of the plaintiff as a proximate cause of the loss. Whereas, said magistrate should have charged that if the jury 'believed from the weight of the evidence that the receipting for the freight at the depot by the plaintiff and the leaving said freight at the depot from the 4th of March to the 9th of March by the plaintiff, if such were the facts, contributed to the loss as a proximate cause, they should find for the defendant.</p> <p>XI. “Where the evidence, as in this case, is uncontra-dicted and is to the effect that the consignee on the 4th of March, 1909, paid the freight charges, and the freight remained in the depot until the 9th day of March, and the consignee having receipted for the freight and told the agent his wagon would call for it, no act of the carrier preventing its removal, the Court should have decided that the liability of a common carrier had ended. Whereas, he did not so hold, but on the contrary, that defendant was liable as a common carrier.”</p> <p>cites: Stipulation that damage for loss shall be measured by value at point of shipment is valid: 6 Cyc. 401; 84 S. C. 360; 70 >S. C. 159; 62 S. C. 414; 19 S. C. 353; 83 S. C. 470; 84 S. C. 361; 84 S. C. 358; 78 S. C. 306. Invoice price is best evidence of value at point of shipment: 84 S. C. 358; 6 Cyc. 401; 40 R. R. A. 355; 84 S. C. 252. Holding goods after freight paid as accommodation makes carrier gratuitous bailee: 6- Cyc. 460; 37 S. C. 452; 76 S. C. 9; 77 S. C. 76; 84 S. C. 62; 85 S. C. 78.</p>

<p>Indorsing on an order for publication of a summons by the clerk his name, but not signing at the foot, where it was intended he should sign, does not make the order valid, nor does signing the order at the foot after publication.</p>

Before Watts, J., Greenville, August, 1910. Action by H. A. Edwards, W. J. Thackston and H. J. Haynsworth against R. E. Johnson. Both parties appeal. Mr. Haynsworth cites: Johnson is estopped from denying the validity of the Udwards option: 114 S. W. 410 ; 42 S. C. 74; 6 E. & B. 932; 92 U. S. 109. Johnson stood in the position of constructive trustee: 48 Am. R. 645; 57 Am.

Before Keugi-i, J., Clarendon, February, 1910. Action by Joseph Holliday, by his guardian and Minnie Simpson, against Joseph N. Hodge. Defendant appeals. cites: Has defendant the right to answer an amended complaint? 76 S. C. 15. cites: Amendment by magistrate: 84 S. C. 94. Appeals from magistrate are decided on merits, technicalities being disregarded: 87 S. C. 560; 71 S. C. 41S; 85 S. C. 343; 61 S. C. 71; 64 S. C. 224; 55 S. C. 309; 73 S. C. 292.

<p>1. Corporations — Contracts.—There is no evidence in this case from which it could be concluded that certain stockholders of the Ware Shoals Manufacturing Company upon consideration contracted to keep Mr. Dial as president of the company for any time which can be rendered certain at any compensation definitely fixed.</p> <p>2. Ibid. — Ibid.—Nor is there evidence to support the claim that certain stockholders as a consideration in part for a block of stock agreed to take at the ruling market prices the output of the company for all future time.</p> <p>3. Ibid. — Ibid.—Nor is there any evidence to support the allegations that defendants agreed to furnish such money as the company needed from time to time at lowest market rates of interest, or that plaintiff stockholders have been damaged by their failure to do so.</p> <p>4. Ibid. — Ibid.-—.Nor is there error in the Circuit Judge in dismissing the complaint as to the alleged extravagance of certain stockholders or directors in the erection of private residences on the corporate property and in issuing preferred stock.</p>

Before DeVorE, J., Darlington, November, 1910. Action by Pee Dee River Lumber 'Co. against W. D. Fountain. Defendant appeals. cites: Counterclaim should have been permitted here: 15 S. C. 462; 54 'S. C. 404. It was error to permit plaintiff to take a nonsuit: 82 S. C. 12; 87 'S. C. 367; 8'7 S. C. 469; 34 Cyc. 1509, 1590; 14 Cyc. 407; 109 Fed.

Before Wilson, J., Cherokee, March, 1911. Action by Wilkins & Brown against J. H. Curry. Defendant .appeals. cite: Demurrer not stating grounds should not be considered: 61 S. C. 448; 74 S. C. 298. Answer sets up a defense and not a strict counterclaim: 72 S. C. 396. The act of ipop, p. 161, changes the rule as to counterclaims in actions of claim and delivery.

<p>Before DeWorE, J., Darlington, November, 1910.</p> <p>Action by Isom Harrelson and Thettus Harrelson against Wes ten? Union Telegraph Co. Defendant appeals.</p> <p>Messrs. Willcox & Willcox and Lucian W. McLemore cite: There was no evidence of negligence: 71 S. C. 386, 304; 73 S."C. 520. There was no evidence of my damages proximately Hozving from defendant’s negligence: 72 S. C. 516; 73 S. C. 520 ; Jones on T. & T. Cos., sec. 325; 75 S. C. 54; 74 S. C. 491; 71 S. C. 303; 70 S. C. 418. There was no evidence of notice of damage: 72 S. C. 290; 70 S. C. 418; 70 S. C. 29, 539. The act 26 Stat. 84, is not retroactive: 36 Cyc. 1201; 21 S. W. 788; 36 Cyc. 1180; 84 S. C. 468; 55 S. C. 295; 60 S. C. 1.</p> <p>cites: Act ipop, page 84, is remedial and relates to procedure and is applicable here: Bail. Eq. 392; 36 S. C. 454, 202; 62 S. C. 300; 31 S. C. 1. Bndlich. Int. Stat., secs. 285, 286; Cool. Con. Dim. 452. Negligence and wilfulness are issues for jury: 87 S. C. 321; 84 S. C. 159; 54 S. C. 504; 72 S. C. 256; 76 S. C. 343; 84 S. C. 70.</p>

<p>Before Prince, J., Richland, 191...</p> <p>Indictment against John Y. Garlington and Jaime's Stobo Young-. Defendants appeal.</p> <p>Mr. Abney cites: The first three counts should have been quashed: 33 S. 0. 115'; 86 S. C. 367; 1 Bail, 144; 5 S. C. 120; 33 & C. Ill; 87 S. C. 535. Share of stock is not the subject of larceny: 1 N. & MbC. 9 ; 2 Bish. Or. R., sec. 769. Motion to direct a verdict shozild be entertained at close of State’s evidence: 22 Pac. 840; 41 How. Pr. 179; 88 N. W. 484; 49 N. Y. 137; 27 R. Bd 2,66; 56 Bed. 76; 156 U. S. 51. Right to open and reply: 4 Md. 30; 2 Bay 451; 22 S. C. 298. Presumption if taking zvas open: 3 A. S. R. 691.</p> <p>Messrs. Christie Benet and R. R. Carwile cite: A share of stock is not the subject of larceny: 42 Mo,. App. 39; 91 N. Y. 483; 1 Cook onj Comp, 58; 1 R. I. 165; 37 Mo. 524; 55 Am. R. 123; 102 Mass. 253 ; 21 N. B. 860; 61 Bed. R. 449; 2 McO. 529; 4 Blade 396-7, 234; 18 Bncy. 515; 1 N. & McC. 39; Crim. Code 147; 3 Stat. 468; Geo. II 1729-35, p. 69, ch. 25. Subjects of larceny under statutes: Arkansas Code 1884, secs. 1623, 1124, 1625; California Code 1886, secs, 492, 494; So. Dakota Code 1902, secs. 1206-7; Delaware Code 1893, 936; Florida Code 1906, sec. 3288; Georgia Code 1885, se:c. 167; Illinois Code 18-85, sec. 215; Indiana Code 1889, sec. 1809; Washington Code 1891, sec. 50; Iowa Code 1873, sec. 3902; Oregon Code 1902, sec. 1798; Utah Code 1897, sec. 1155-3; Wisconsin Code 1898, sec. 4415; Kentucky Code 1894, sec. 1161; Fouisiana Code 1884, 135; Maryland Code 1888, sec. 158; 48 Md. 27; 62 Md 412; Massachusetts Code 1902, sec. 25; Vermont Code 1895, secs. 49, 39; Minnesota Code 1891, sec. 6398; Mississippi Code 1906, sec. 1254; Missouri Code 1899, sec. 1902; Kansas Code 1901, secs. 2075, 2069; Nevada Code 1900, sec. 4818; Montana Code 1895, sec. 889; Nebraska Code 1901, sec. 2187; New Hampshire Code- 1891, sec. 3; Nezv Mexico Code 1897, sec. 1115; North Carolina Code 1905, sec. 3598; Ohio Code 1891, -sec. 6794; Rhode Island Code 1896, 984; Tennessee Code 1884, sec. 5457; Texas Code 1879, amt. 732; Utah Code 1907, sec. 4363; Virginia Code 1887, secs. 3708, 2709; 32 Grat. 866; 24 Grat. 525; 23 Grat. 949; 13 Grat. 757; West Virginia Code-1889', 954; 26 W. V. 750; 26 W. V. 54; Wyoming'Code 1877, sec. 901; Colorado, sec. 753, Code 1883. Indictment should allege value of shares of stock: 2 MeC. 527; 87 S. C. 535. Motion to direct verdict at close of State’s evidence is proper proceeding: 82 S, C. 368; 75 S. C. 201; 2 Ido. 148; 185 Fed. 102; 138 U. S. 861; 164 U. S. 676; 106 U. S. 700; 46 At 339; 112 Fed. 918; 107 Fed. 360; 151 U. S. 50; 205 U. S. 86; 15 Or. 256; 41 How. Pr. 179; 68 S. C. 184; 36 Mo. 203; 61 S. C. 22. A stockholder cannot defraud a corporation by an act approved and ratified by it: 19 L. R. A., N. S. 115; 40 N. E. 364; 78 S. C. 404; 28 S. C. 142; 66 S. C. 510; 129 Fed. 397; Thomp. on Carp., sec. 2049; 87 S'. W. 29.</p> <p>cite: Defendants cannot deny they had the-power to issue the stock: 21 S. C. 358. Definition of conspiracy: 11 S. C. 195; 8 Cyc. 620, 667. Conduct of case is in hands of trial Judge: 33 S. C. 100. Motion to direct not stating wherein proof has failed should not be considered: 12 Cyc. 596. Record must show prejudicial error: 30 S. C. 262; 17 S. C. 66; 83 S. C. 34; 81 S. C. 367; 63 S. C. 178. Court should not consider motion to direct: 52 S. C. 583; 99 Mass. 605; 51 Fed. 562; 6 Ency. P. & P. 693-4, 698; 85 Mich. 550; 89 Mich. 387; 105 Cal. 262; 33 Ency. 96; 1 Wall. 39'5; 9 Mo. 116; 2 Thomp. on Trials 1624; 63 S. C. 641. Agent is guilty of breach of trust by keeping money of principal: 40 S. C. 325; 53 S. C. 533.</p>

<p>Before Gary, J., Anderson, October, 1910.</p> <p>Action by W. E. Mattison et al. against W. C. Stone. Defendant appeals.</p> <p>cite: The children take as legatees: 5 Rich. Eq. 215; 25 S. C. 149; 17 S. C. 572; 62 S. C. 482; 86 S. C. 1; 23 S. C. 502, 382; 62 S. C. 482; 2 Wms. on Ex. 1010; 56 S. C. 209#; 52 S. C. 88. This cannot be upheld as a family settlement: 32 S. C. 263; 74 S. C. 535; 9 Rich. 483; 22 S. C. 421; 33 S. C. 194; 29 S. C. 247; 19 S. C. 593. Statute began to run against the life tenant: 85 S. C. 373; 78 S. C. 143; 50 S. C. 120; 52 S. C. 88; 56 S. C. 209. Presumption is in favor of title: 78 S. C. 155; 61 S. C. 276; 80 S. C. 110.</p> <p>cite: Is this a case of equitable conversion? 14 S. C. 238; 45 S. C. 596; 59 S. C. 146; 67 S. C. 135; 16 S. C. 238; I Tiffany on Real Prop. 605; 68 S. C. 260; 60 S. C. 214; 143 Cal. 265; 69 N. Y. 1; 139 N. Y. 210; 15 Ill. 103; 49 N. J. Eq. 125; 71 Ga. 566; 148 Mass. 395. As to reconversion: 9 Cyc. 855; 1 Tiff, on R. P. 107; Pom. Eq. Jur., sec. 175; Bispham’s Eq., sec. 332; 51 S. E. 109; 45 S. C. 268.</p>

Before Shipp,, J., Charleston, February 4, 1911. Action by James O. Gibbes et al. against R. Lebby Clement. Plaintiffs appeal. cites: Injunction may be granted on allegations on information: 10 Ency. P. & P. 930; 7 Paige 157, 305. Temporary injunction should not have been dissolved: 10 Ency.

<p>Before. DjíVorE, J., Williamsburg, February, 1911.</p> <p>Action by Samuel M. McClary against Atlantic Coast Lumber Corporation and Industrial Trust Company. Plaintiff appeals.</p> <p>Mr. Hazard cites: This action is essentially for injunction: 84 S. C. 51; 75 S. C. 220; 27 W. Va. 510; 54 S. C. 457; 51 S. C. 433; 62 S. C. 196; 60 S. C. 559; 69 S. C. 52. Temporary injunction should not have been dissolved: 2 Spelling, secs. 1057, 1067, 1019; 30 N. J. Eq. 579; 76 N. C. 407; 77 S. C. 81; 54 S. C. 435; 60 S.-C. 559. Construction of the deed: 13 Cyc. 618* 619, 621; 2 Ency. 139; 2 Black Com. 381, note 15; 23 S. C. 232; 57 S. C. 173. Doctrine of reasonable time: 55 L. R. A. 513; 36 S. E. 758; 15 Pa. 364; 164 Pa. 234; 28 Am. R. 776; Cases cited in note to 55 L. R. A.; McRae v. Silwell, 38 S. E. 26; 51 S. E. 852; 46 S. E. 24; 32 S. E. 94; 57 S. E. 873; 45 So. 492; 119 Am. St. R. 709; 74 Miss. 877; 131 Am. St. R. 540; 45 So. 492; 96 Pac. 420; 64 S. E. 200. Deed is void because it requires grantee to pay taxes indefinitely on land and limber: Code 1902, secs. 261, 269, 263; 64 S. C. 24.</p> <p>Messrs. Willcox & Willcox and Henry B. Davis cite: Question not made below, not considered here: 76 S. C. 504; 78 S. C. 551. Under construction of deed by Court below injunction not entitled to stand: 58 S. C. 491; 75 S. C. 221; 84 S. C. 53; 86 S. C. 160; 77 S. C. 81; 64 S. C. 405; 27 S. C. 415; 80 S. C. 106. Deed conveys the timber in fee simple: 80 S. C. 106; 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; 19 S. C. 9; 131 Am. St. R. 540; 12 S. C. 62. The provision as to removal is a covenant: 123 Am. St. R. 58; 109 Am. St. R. 107; 20 Am. R. 119; 32 Am. R. 193; 49 N. E. 821; 15 S. C. 440. Covenant cannot control the grant: 79 S. C. 166; Harp. 492; 4 McC. 198; 48 S. C. 282; 76 S. C. 297; 1 Dev. on Deeds, sec. 214; 13 Cyc. 619; 71 S. C. 64; 36 S. C. 295; 48 S. C. 431; 77 S. C. 171; 83 S. C. 265; 79 S. C. 166. Must 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. Cases holding that where deed expresses no time, only a reasonable time will be allowed: 55 L. R. A. 531; 22 Am. Dec. 410; 1 Sandf. Ch. 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 Am. R. 776; 45 Am. R. 19; 6 At. 48; 38 N. W. 794; 27 E. R. A. 434; 47 L- R. A. 226; 30 At. 247 ; 37 S. W. 260; 43 S. W. 732; 36 S. E. 758; 83 Am. 661; 85 Am. St. R. 404; 39 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. Necessity of notice to begin time 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. Contract must be construed by its own terms: 42 Am. R. 701; 23 Am. St. R. 785. Deed is not void as against public policy because it prevents clearing land: 131 Am. St. R. 540; 77 S. C. 467; 85 S. C. 405; 79 S. C. 466; 80 S. C. 106, 185.</p> <p>Messrs. Kelly & Hinds cite: Whether temporary injunctions are essential to right of plaintiff must be determined by Circuit Court: 86 S. C. 161; 75 S. C. 220; 84 S. C. 51; 87 S. C. 566; 88 S. C. 121. Provision as to cutting and removing is an independent covenant: 79 S. C. 168. This provision is not indefinite or uncertain: 9 Cyc. 250, 215; 139 N. C. 160. Contract is not void as against public policy: 9 Cyc. 482, 483; 131 Am. St. R. 540; 77 S. C. 467; 12 Rich. 320.</p>

<p>Before Gage, J., Charleston, June, 1911.</p> <p>Indictment against Peter Glover before W. D. Hamlin, magistrate. Defendant appeals from Circuit order affirming judgment of magistrate.</p> <p>cites: Magistrate had no jurisdiction of this offense: 43 S. C. 3. Dropping of pistol shows defendant acted in self-defense: 3 Green. Ev., sec. 55. Evidence shows prosecutor was the. aggressor: 1 Ency. Ev. 1013; 77 N. W. 337; 10 N. E. 350; 111 Ala. 33.</p>

<p>Before Gary, J., Charleston, February term, 1911.</p> <p>Action by Ella Rowe against the United States Industrial Life Insurance Co., of Charleston, S. C. Defendant appeals on the following exceptions:</p> <p>1. “That the presiding Judge erred in charging the jury as follows:</p> <p>“ T charge you that the receipt book shows (and if I am in error I hope the agent will correct me) that on August SSd the policy was more than four weeks in arrears; at that time the agent had a right to say to the insured you have no standing in this company, I cannot receive your money, if you want to continue your insurance you must have another policy issued to you, but the book shows that he did not exercise that right, he collected seven and a half premiums at one time, showing that this agent did not consider the contract with the insured to be forfeited and that they still considered it to be alive,’ the error being that his Honor absolutely disregarded the provisions of clause 8 of the policy, which provided for reinstatement upon payment of back premiums in full, but under conditions therein stated, none of which conditions provided for the issuance of a new policy and, therefore, the receipt of the premiums without the issuance of a new policy could in nowise be construed to be a waiver of the conditions of reinstatement provided for by the contract.</p> <p>2. “That the presiding Judge erred in charging the jury: ‘Now, I say the insurance company had a right to discontinue its policy when it was four weeks in arrears, but they did not, the agent collected seven and a half premiums— now, I say if they had knowledge at that time that the insured was in arrears and they didn’t stand by their contract, but went ahead and accepted his money, leading him to believe that he was insured, they cannot say his policy was not good; the law comes in and says you waived your right to stand on your forfeiture clause,’ the error being that the presiding Judge disregarded the provisions of clause 8 of the contract, which gave the insurer the right to accept premiums from policyholders out of benefit, and reinstatement upon such acceptance was under the terms of that clause, the effect and construction of the charge as above set forth necessarily leading the jury to believe that an acceptance of premiums more than four weeks in arrears was a waiver of forfeiture, without any consideration' of the terms and conditions provided by the policy for such waiver.</p> <p>3. “That his Honor erred in charging the jury: ‘Now, I say it had a right to say when these premiums were in arrears four weeks, we won’t receive your premiums, you are out of benefit, but if they did not and lead the insured to believe that by paying the back premiums, which the agent accepted, shown by the receipt book, and that went into the treasury of the company, the company will not be permitted to say, you are out of benefit; they had a right to insist on it, and also to waive it, but if they didn’t stand on it, and not having invoked it, then they will not be permitted to receive the money from the insured and get the benefit of his premiums, and then say we are not liable for that time/ the error being that his Honor should have construed clause 8 of the contract in connection with this charge, and instructed the jury that the insurer had the right to waive the forfeiture, but if such waiver was made, that the provisions of clause 8 controlled the effect of that waiver and defined the rights of the insured thereafter.</p> <p>4. “That his Honor, the presiding Judge, erred in charging the jury: 'Now, the question of fact for you is, did the insurance company, with the knowledge of the fact, with that knowledge, did they go and put the insured to thé expense and trouble, and so conduct themselves as to lead him to reasonably believe that he was still insured, then accept his money under these conditions; if so, a Court of law will not permit them to come and say that we are going to stick to the forfeiture clause,’ whereas, he should have charged that the question of fact for the jury was, 'if a forfeiture occurred under clause 7 of the contract and thereafter the past due premiums were accepted by the company, was such acceptance made by the company under the terms of clause 8, or was there a waiver of that clause also?’</p> <p>5. ''That his Honor, the presiding Judge, erred in charging the jury (after reading to them clause 7), ‘that is a valid clause to put in, but if they go and accept the money after that and lead the party from whom they accept it to believe that they do not intend to hold him down to that strict rule they would waive their right.’ The error being that the presiding Judge again disregarded the provisions of clause 8, which, in the construction of the contract, must necessarily have been construed in connection with Clause 7.</p> <p>6. “That upon being requested by defendant’s counsel to construe clause 8 in connection with clause 7 of the contract, his Honor, the presiding Judge, erred in charging the jury: ‘Now, there is a rule put down that if he is in arrears for four weeks or more, this forfeiture clause is put here that he must be reinstated by issuing another policy, that he be subject to another medical examination if they so desire, the company having the right to waive it if they desire to, they have the right to waive that a new policy be issued to him as in the case of the medical examination, because, if they have kept it alive by their conduct, there is no necessity for another policy to be issued, they can waive that clause as any other clause on the back of the contract, they can hold him down to it or they can waive it.’ The errors being (1) there is no requirement under clause 8 nor in the contract that insured must be reinstated by the'issuance of another policy; (2) that he should have construed said clause 8 to mean, 'that if a policyholder was out of benefit under clause 7, he could be reinstated by payment of back premiums in full (and upon passing a medical examination, which could be waived), but such policyholder would not be entitled to benefit unless in sound health and free from disease at the time, and that the company would not be liable under said policy if insured died within five weeks after such reinstatement and, therefore, if the insured was out of benefit under clause 7 and had been reinstated under clause 8, but died within five weeks after such reinstatement, he could not recover under said policy, unless the jury should find that the insurer had waived the provisions of that clause limiting the liability.’ ”</p> <p>cite: The forfeiture clause is not ambiguous: 77 S. C. 531.</p> <p>cites: When forfeiture is waived: 42 S. C. 14; 43 S. C. 26; 46 S. C. 541; 51 S. C. 180; 52 S. C. 224; 54 S: C. 599; 55 S. C. 589; 57 S. C. 16; 63 S. C. 192; 77 S. C. 531; 78 S. C. 533; 88 S. C. 31. ' Reinstatement implies prior forfeiture: 77 S. C. 531. Forfeitures are not favored: 96 U. S. 577; 60 S. E. 470; 88 S. C. 38.</p>

<p>1. Real Property. — A timber deed giving the right to grantee to enter and remove the timber within ten years gives title to the timber for that time only and grantee has no right to enter for the purpose of cutting and1 removing after that time.</p> <p>2. Ibid.' — Under a deed conveying the timber on a certain- tract in consideration of a certain sum to he paid annually in' advance of a specified date for a series of years with a proviso that grantee could surrender his rights at will and' that a failure to pay as provided shall he deemed such surrender, failure to pay as stipulated forfeits the rights of grantee and tender of amount due and interest does not reinstate him.</p>

Before Gage, J., Lexington, January 5, 1911. Action by Ernest DuPre against Lexington County. From order affirming judgment of Magistrate Henry Buff, defendant appeals.

Before SrasE, J., Anderson, Summer term, 1911. Action by J. W. Trowbridge against Charleston and Western Carolina! Railway Company. Defendant appeals. cite: If there is no evidence to support the verdict, it should be set aside; 64 S. C. 566, 344; 66' S'. C. 314. Plaintiff must show damage was caused by negligence of defendant: 87 S. C. 364. cite: There being con-ftict in the evidence, the charge of the Circuit Judge is not on the facts: 79 S. C. 122.

Before Shipp, J., Richland, February-, 1910. Action by David Myers against Meeker MeCaots Burn-sides in bier own right and as executrix. Plaintiff appeals. No- argument furnished reporter. cites: A judgment should not be set aside by collateral-attack: 83 S-. C. 170; 62 S. C. 540; 34 S. C. 460; 125 N. C. 177. Where it can be done judicial sales will be supported: 18 S-. C. 126; 16 S1. C. 281; 23 S. C. 514; 25 S. C. 275; 77 S. C. 393.

Before Prince, J., Sumter, November, 1910. Action by Lucius B. Phillips against ¡the Atlantic Coast Line Railroad Company and Warren Jones. Defendants appeal. Mr. McLemore cites: Issue of punitive damages should have been withdrawn from the jury: Sutlb. on Dam., sec. 393; 69 S. C. 444; 62 S. C. 352'; 64 S. C. 433; 47 Am. R. 279. A passenger lawfully ejected may be refused entrance again: 77 Am. Dec. 347; 43 Amt R. 432; 3 Vroom'. 309;-54 Am. R. 699; 3 Pork. Or.

<p>Jurisdiction — Bar.—Where a case is tried in the Federal Court of which it has jurisdiction and the trial is on the merits, it will not he held not to have been on the merits, and not a 'bar to an action on the same cause of action between the same parties in the State Court.' because the Judge ini directing. the verdict said he felt he had no jurisdiction of the case, especially where this was not made one of the grounds upon which direction of verdict was urged.</p>

Before Ernest Moore, special Judge, Chester, April, 1910. Held: the question as to whether the plaintiff 'owns such Ome-third interest is a legal issue for determination on trial by jury.

<p>1. Judgment — Demubbeb—Bab—Appeal.—All- parties are bound by the construction put on a complaint in passing on a demurrer, not appealed from. Where one ground of a demurrer sustained by the Court, is that the complaint shows that deceased while a licensee or trespasser was injured by accident as a result of the breaking of machinery while used in the ordinary course of its business, which could not have been guarded against; such judgment is a bar to a subsequent action on the same cause of action between the same parties.</p> <p>2. Amending Complaint. — Relief from allegations construed to destroy the cause of action is by amendment.</p> <p>3. Reheaking refined.</p>

<p>Before DeVoee, J., Gherokee, Fall'term, 1909.</p> <p>Action by Wylie S. Davis against Araminta Whitlock. Defendant appeals.</p> <p>cite: After death of former husband marital relations continuing, the present marriage becomes valid: 1 Eng. App. Cas., 686; 52 C. C. A. 568; 108 N. Y. S. 164; 124 Am. St. R. Ill; 127 N. W. 313; 125 Mich. 340; 24 Cal. 510; 88 Ind. 494; 4 Johns. 52; 173 N. Y. 266; 6 A. & E. Ann. C. 483; 182 Mass. 476; 3 L. R. A. (N. S.) 244; 60 D. R. A. 605; 64 Am. D. R. 256.</p> <p>cites1: Generally as to the contract of marriage: 1 Hill 10; 5 Rich. Eq. 126; 2 S'tndb. 10; 26 Cyc. 863, 848; 4 John 52; 23 S. E. 926; 26 Cyc. 904; 51 Barb. 270; Code 1902, 2661; 10 S. C. 502.</p>

<p>Before Prince, J., Sumter, November, 1910.</p> <p>Action1 by James A. Miller against Atlantic Coast Line Railroad Company, James W. Sellers, William R'hett and William Woods. Plaintiff appeals;</p> <p>Messrs. Best & Cunningham cite: Right of legislature to regulate contracts: State v. Mullins, 87 S. C. . Validity of this statute: 131 la. 341; 172 U. S. 552; State v. Mullins, 87 S. C. ; 115 U. S. 463; 169 U. S. 133; 113 U. S. 27; 151 U. S. 556; 183 U. S. 13; 212 U. S. 545; 123 U. S. 623; 136 U. S. 313; 191 U. S. 207. Legislature may determine what public policy requires: 187 U. S. 609; 190 U. S. 169; 127 U. S. 256. Act of 1903 is not repealed by act of 1905: End. on Init. of Start., sec. 250; 68 S. C. 411; 14 Rich. L. 247; S«th. on Start. Con., secs; 133, 134, 156; 79 Cal. 463; 501 Neb. 127; 79 Am- St. R. 149; 26 Am.. St. R. 63; 157 U. S. 57.</p> <p>cite: The nature of defendant’s relief department and the trend of judicial opinion as to it: 8 At. 206; 3 Elliott on R. R., secs. 1381-2, 1384; 10 At. 237; 23 At. 307; 58 N. W. 1120; 37 N. E. 423; 29 At. 854; 30 At 492; 33 L. R. A.'493;'82 N. W. 314; 35 L. R. A. 507; 70 N. W. 680; 66 Am. St. R. 456; 38 L. R. A. 750; 76 Fed. 439; 65 Fed. 305; 55 S..C. 152; 44 L. R. A. 698; 43 At. 908; 84 N. W. 90; 59 L. R. A. 291; 64 L. R. A. 40¡5; 35 S. E. 82; 77 N. E. 248 ; 107 N. W. 1005 ; 95 N. W. 344; 97 N. W. 831; 104 N. W. 1066; 40 Sb. 394; 1 L. R. A. 75 ; 36 Fed. 655; 71 Fed. R. 136, 139, 931; 118 Fed. 92; 9 Q. •B. Div. 357; 2 Q. B. 483; 65 Red 305; 49 N. E. 583; 53 N. E. 390; 3 Elliott, sec. 1383; 91 A. S. R. 445 ; 43 S. E. 339; 80 'S. C. 167; 41 Fed 135; 166 Fed 850; 179 Fed 138; 58 N. E. 866; 74 lad 942; 45 So. 761; 82 N. E. 471; 75 At. 1010. The act of 1903 is repealed by the act of 1903: BJack oni lint, of E. 116; End on Init. of Statutes, sec. 250; 69 S.-C. .322. The act of 1903 is void as denying defendant the equal protection of the laws: 165 U. S. 150; 73 S. C. 71; 63 S. C. 425. The act of 1903 is not retroactive in effect: 36 Cyc. 1201, 1180; 21 S. W. 788; 34 S. C. 468; 55 S. C. 295; 60 S. C. 1. If construed as operating retroactively the act of 1903 impairs the obligation of contracts: 102 U. S. 203; 106 U. S. 124; 6 Cranch 87; Cool. Gon. Eim. 385, 404, 410, 411; 8 Cyc. 931, 933, 993. It is an unreasonable interference with the right of private contract: 165 U. S. 150, 578; 198 U. S. 45; 208 Ur. S. 161; 123 U. S. 623; 152 U. S. 133; 22 Enicy. 938-9; 8 Cyc. 865; 50 A. S. R. 443; 91 A. S. R. 938; 98 A. S. R. 325; 95 A. S. R. 241; 142 111. 80; 141 Ill. 171; 46 A. S'. R. 315; 44 R. R. A. 698; 31 A. S. R. 533; 80 S. C. 167. This act should not be included under the police power: 123 U. S. 623; 152 U. S. 133; 46 Am. St. R. 335; 22 Am. R. 71; -50 Am. R. 636; 4 A. S. R. 465; 52 A. S. R. 365; 76 A. S. R. 30; 50 Am. R. 636; 63 A. D. 391; 57 R. R. A. 895; 41 R. R. A. 481; 9 ■Midh. 285; 77 A. S. R. 765. The relief department contract cannot be prohibited by the police power: 55 S. C. 152: 62 S. C. 469; 80 S. C. 189. Constitutionality of the act' of 1903: 179 Fed 26; 1 Ohio 213; 7 Ohio N. P. 606; 71 Fed 931; 80 S. C. 167; 166 Fed 850; 55 Ohio St. 497; 152 Ind 345; 71 Fed 931; 1 Ohio N. P. 213; 50 Ohio St. 497; 152 Inid 345; 62 S: C. 469.</p>

<p>Before Memminger, J., Aiken, Fall term, 1910.</p> <p>Action by Lizzie Woodward, administratrix of Hamp. Woodward, against Southern Railway — Carolina Division. •Plaintiff appeals.</p> <p>cites: When nonsuit should not be granted: 86 S. C. 274; 62 S. C. 135; 66 S. C. 484; 68 S- C. 487; 85 S..C. 359; 25 S. C. 132; 82 S. C. 363; 77 S. C. 342. Was deceased a licensee? 67 S. C. 506; 68 S. C. 488; 75 S. C. 292. Failure to give statutory signals is competent on issue of recklessness: 52 S. C. 329; 58 S. C. 74; 64 S. C. 113; 78 S. C. 363; 85 S. C. 25; 87 S. C. 327; 83 S. C. 354. Railroad Co. waived its notice of no trespass: 33 Cyc. 761; 87 S. C. 258; 135 Mass. 352; 79 S. W. 505, 394; 8 L. R. A. (N. S.) 1089. Was there contributory negligence? 86 S. C. 109; 40 L. R. A. 131; 42 N. E. 207; 53 At. 736; 69 S. C. 1; 72 S. C. 172; 23 Ency. 754, 748-56-9; 33 Cyc. 766, 772, 778, 780, 782, 792; 6 St. Ry. R. 2é2; 11 l. R. A. (N. S.) 355; 8 L. R. A. (N. S.) 1076-79; 16 A. & E. Ann. Cas. 233; 65 S. C, 218; 8 Ency. 412; 19 S. C. 26; 61 S. C. 560; 68 S. C. 487; 70 S. C. 191; 86 S. C. 111.</p> <p>cite: Place of injitry was not in populous community: 86 S. C. 106; 41 S. C. 1; 61 S. C. 556; 64 S. C. 104; 67 S. C. 501; 68 S. C. 483; 82 S. C. 321; 72 S. C. 389. Place of injury was posted with warning: 85 S. C. 440; 63 S. C. 266; 67 S. C. 548; 68 S. C. 487; 85 S. C. 440; 61 S. C. 560; 86 S. C. 106. Duty of railroad to trespasser: 34 S. C! 136; 56 S.. C. 248; 34 S. C. 299; 61 S. C. 559; 57 S. C. 243; 70 S. C. 183; 33 Cyc. 769, 778; 8 L. R. A. (N. S.) 1090; 33 S. W. 631; 113 A. S. R. 1032.</p>

<p>1. Evidence. — Nonexpert witnesses who have known' and1 observed a water power, creek and surrounding country for years and the effect of freshets may be allowed' to give their opinion as to the effect of a dam below on a water power above.</p> <p>2. Ibid. — Ibid.—Similar evidence as to similar creeks emptying into the same river below the dam is not admissible.</p> <p>3. Waters — Dams.—A lower riparian owner may injure an upper owner by so constructing his dam as that the backwater might cause the sand to be deposited in the stream between the upper and lower line of the upper owner, although the backwater does not reach the lower line of the upper owner.</p> <p>4. Ibid. — Charge.—Where there is evidence to the effect that the backwater did not come nearer plaintiff’s dam than two miles, but on account thereof sand was deposited in the creek and the bed raised so as to destroy his water power, the instruction that if plaintiff was injured by water backed to and upon his water power, and the consequent deposition of sand in the creek, defendant would be liable, is irrelevant or immaterial.</p>

<p>Railroads • — • Ordinances — Contributory Negligence —: Issues — Crossings. — Failure to comply with a city ordinance providing that trains should not be run faster than four miles an hour within the city limits and that a man should precede an engine while crossing a street or lane with certain signals is negligence per se — and even if a man at a street crossing, trying to get his horse off the track, is guilty of negligence and is injured, whether the negligence of the railroad company or of the deceased was the proximate cause of the injury should have been sent to the jury.</p>

Before Gage, J., Greenville, April, 1911. Action by Morgan &, Austin against W. L. Moorhead. Defendant appeals. cites: Amendment came too late: 81 S. C. 574; 21 S. C. 221; 55 S. C. 90; 64 S. C. 491; 3 S. C. 411. cites: Findings in law case will not be disturbed: 26 S. C. 304; 33 S. C. 359. Account may be proved by admissions: 27 S. C. 156; 86 S. C. 315. One receiving goods knowingly must pay for them: 46 S. C. 15.

<p>Insanity — Mortgages.—The overwhelming- weight of evidence is to the effect that the mortgagor was sane when he executed the mortgage and when the summons and complaint in foreclosure were served on him.</p>

<p>Negligence — Ordinances.'—'Running an automobile on the streets of a city faster than prescribed1 by the ordinances is negligence per se— but such negligence is not actionable unless it is the proximate cause of an injury.</p>

<p>Within ten days after the filing of this opinion the appellant moved to stay the remittitur pending a motion to set aside the judgment against the insurance company on the ground that it had never ’been served. The motion was granted with leave to move to set aside ‘the stay order. The following order was made on ¡tihe motion! to- set aside.-Reporter.</p>

Proceeding in tihe original jurisdiction ¡of this 'Court by Attorney General' J. Fraser Lyon against P. A. Brady, James Milton and State Agricultural and Mechanical Society to abate a nuisance of betting at ¡the raoes conlduoted at the society’s grounds when the proceeding was begun.

<p>1. The instruction “You are prepared to hear the charge of the Court and- to retire after hearing that charge and go over the testimony and extricate from the testimony the truth of the case,” is not on the facts, but-was general and simply required the jury to ascertain the truth of the case from the testimony.</p> <p>2. Self-Defense. — The instruction, “So when a man strikes another a blow and that man acting under the influence provoked by the blow shoots and kills, that is a clear case of manslaughter,” when considered in its connections, and the whole charge was not a statement of facts, but a hypothetical statement, and could not have the effect of excluding the doctrine of self-defense which was elsewhere fully given.</p> <p>3. Ibid. — The Court did not limit the doctrine of not retreating to cases where firearms or some dangerous weapon was drawn for use, or being used, but instructed the jury that one may stand and take the life of his assailant where the necessity is either real or apparent to a man of ordinary reason and firmness.</p> <p>4. Charge — Requests.—Where the record shows that all requests by appellant were read by the 'Court, and none objected to, refused or modified, there is no ground for an exception that any of the requests were refused.</p> <p>5. Reasonable Doubt — Preponderance op Evidence. — The instruction here complained of held, when construed with its context, to have informed the jury that the defense of self-defense must be proved, by the preponderance of the evidence, but on the whole case the guilt of the accused must appear beyond a reasonable doubt.</p> <p>6. New Trials — Jurors.— Wlhere appellant does not satisfy the 'trial Court that he has used due diligence in ascertaining if a juror is over age, or is not a qualified elector, or that the juror is in fact over age, and the record not showing his conclusions contrary to the evidence, its findings will not be disturbed.</p> <p>What a party alleging a juror is disqualified must show to entitle him to a new trial, stated.</p>

<p>1. That a juror is opposed to capital punishment warrants the trial Judge in refusing to have him presented.</p> <p>3. Ibid. — -Where a defendant has not used all his peremptory rights of challenge he will not be heard to say there was error in excluding a juror.</p> <p>S. Evidence. — An expert on mental ailments can have no opinion of the condition of a defendant’s mind at a time some months previous to his examination of him. What expert evidence is competent, stated.</p> <p>4. Ibid. — The question by the Court, “Do I understand- it to be your opinion that every man who commits a deliberate, premeditated murder is crazy,” held to have been asked for the purpose of understanding the testimony of the witness and- not shown to have been prejudicial.</p> <p>5. Murder — Insanity.—In cases where the defendant relies on the defense of monomania, he must satisfy the jury that he did not know right from wrong when the offense was committed, before they can acquit him. State v. Bundy, 24 S. C., 439, affirmed.</p> <p>6. Failure to charge a self-evident proposition, properly requested, is not prejudicial error where the charge fully covers aE the issues.</p>

Before Gary, J., Charleston, Ajpril, 1911. Action by Joshua Lockwood against A. H. MacLeain. Defendant appeals. cite: No veriñcation is required of this answer: Codie of Proc. 178, 154. cites: Answer should have been veriñed: Code of Proc. 177. Right not to verify should be claimed in answer: 3 Sandlf. 716; 7 How. Pr. 57.

<p>Before Gary, J., Charleston, April, 1911.</p> <p>Action by Alice Bennett against Charleston Union Station Company and Atlantic Coast Line R. R. Co. Defendants appeal.</p> <p>cites: Not even gross negligence will warrant punitive damages: 60 S. C, 73; 65 S. C. 1; 68 S. C. 89; 69 S. C. 434.</p> <p>cite: Recklessness in violating rules is a ground for punitive damages: 89 S. C. 380; 88 S. C. 7; 85 S. C. 463. Verdict supported by the evidence will not be disturbed: 89 S. C. 3; 86 S. C. 529; 88 S. C. 91.</p>

Before Watts, J., Greenville, June term, 1910. Action by Joella Campbell, as administratrix of Chas. L. Campbell, against Southern Railway, Paul Odom and Rudolph Sammons. Defendants appeal. cite: The duty of master is to furnish instrumentalities that are reasonably safe: 1 LaBatt, sec. 26; 20 S. E. 70; 18 S. W. 710; 118 N-. Y. S. 898. The deceased was guilty of contributory negligence: 77 S. C. 328; 86 S. C. 69.

Before Princeí, J., Orangeburg, May, 1911. Action by Wm. P. Stack against Anigeline Haigler. Defendant appeals. cites: Form of finding of fact: 7 S. C. 308; Con. 1895, art. V, sec. 9. Deed must be set aside because of unfair concealment: 86 S. C. 580. If there was a debt and the deed was to secure its payment the deed is a mortgage: 45 S. C. 614; 52 S. C. 54; 55 S. C. 510; 54 S. C. 184. Fraud may be inferred from facts and circumstances: 52 S. C. 479; 57 S. C. 110.

<p>1. Carrier — Freight.—Under a bill of lading “order notify” it is the duty of the carrier to notify the consignee of the arrival of the freight, and the liability of insurer does not cease until the elapse of a reasonable time thereafter for removal,</p> <p>3. Ism. — Ibid.—Penalty.—The charge in this ease that plaintiffs are . not entitled to recover the penalty unless they recover the whole amount claimed, construed under the facts and by considering the whole charge to mean that they are not entitled to recover the penalty unless they recover the whole amount for which claims were filed.</p> <p>3. Charge. — A request should' be submitted to instruct as to any special view of the law.</p> <p>4. Rehearing refused.</p>

<p>Rehearing refused on the ground that while the Court stated merely the result of its opinion, it considered the point made by the exceptions that there was no evidence to support certain findings material to respondent’s- case.</p>

<p>Nuisance. — When a respondent in an action to enjoin a nuisance files a return showing a complete abandonment in good faith of the nuisance and a discontinuance of the same within the jurisdiction of the Court, and that he does not contemplate doing any of the acts alleged in the petition as a nuisance within the jurisdiction of the Court, the petition will he dismissed with costs to the petitioner.</p>

<p>Before Aldrich, J., Charleston', April term, 1910.</p> <p>. Action by Robert B. Sanders against Southern Railway— Carolina Division. Plaintiff appeals.</p> <p>cite: When non-suit should not be granted: 78 S. C. 251; 80- S. C. 545; 67 S. C. 129; 86 S. C. 274; 50 S. C. 37; 86 S. C. 306; 60 S. C. 18. Plaintiff zvas a licensee: 61 S. C. 556; 67 S. C. 501; 68 S. C. 483; 72 S. C. 393; 82 S: C. 326; 86 S. C. 109; 59 S. C. 432. If plaintiff were a trespasser nonsuit should not have been granted: 94 S. W. 967; 100 S. W. 246; 94 Fed. 321; 63 S. E. 151; 61 S. W. 58; 64 S. W. 90; 27 S, E. 20; 23 Eney. 745. Nonsuit should not be sustained on grounds additional to those on which it was granted: 78 S. C. 127; 53 S. C. 132; 54 S. C. 353; 55 S. C. 450; 64 S. C. 580'.</p> <p>cites: Trespasser on railroad tracks: 19 S. C. 20; 23 S. C. 531; 34 S'. C. 299; 41 S. C. 1. Protection to trespassers: 57 S. C. 243; 64 S. C. 7; 61 S. C. 559. Use of right of way by public: 61 S- C. 559 : 65 S. C. 410; 67 S. C. 501; 85 S. C. 440; 68 S. C. 483; 70 S. C. 183. , Injury at dangerous places: 86 S. C. 106. Care licensee should exercise: 58 L. R. A. 75•; 29 Cyc. 520 ; 65 S. C. 429.</p>

Before Gary, J., Georgetown, April, 1911. Action by 'the State of South Carolina against Jantes F. Detyens and1 American Bonding Company of Baltimore.

Before Mrmminger, J., Georgetown, June, 1911. Indictment by City of Georgetown against C. TeRoy Scurry. Defendant appeals from Circuit order affirming judgment of recorder’s court. cites: When police officer can arrest without warrant at common law: Clark Crim. L., sec. 40; 2 N. & McC. 475; 64 S. C. 328. Powers of a police officer: 1 Dill. Mun. Corp., sec. 149; 17 S. C. 58; 9 S. C. 309; 2 Strob. 73; 40 S. C. 507; 61 S. C. 242; 70 S. C. 74; 53 S. C. 150.

<p>Motion by W. H. Martin and W. H. Champion, executors, respondents, against George and Zeno Blackwell, appellants, to dismiss appeal.</p>

Petition in the original jurisdiction of this Court by J. W. Fowler for injunction against the Town Council of the Town of Fountain Inn and Enoree Power Company to restrain them from entering into a contract to light the town. cite: Proposed contract is a bonded indebtedness: 60 S. C. 532. Registration provisions apply to municipal elections: 84 S. C. 48.

Petition in the original jurisdiction of this Court by R. L. Golden against J. B. Wharton, foreman of the grand jury, the County Board of Commissioners and County Treasurer of Greenwood county for writ of mandamus.

<p>Before Prince, J-, Bamberg, Winter term, 1911,</p> <p>Action by Nettie and A. McB. Speaks against Southern Railway Company — Carolina Division. Defendant appeals.</p> <p>cite: As to punitive damages: 62 S. C. 269; 69 S. C. 444; 2 Suth. on Dam. 1093; Thomp. on Neg. 476; 29 S. C. 271; 16 Ency.; 64 S. C. 507; 60 S. C. 75; 65 S. C.-42; 12 Ency. 24-5; 2 Hilt. 440; 120 N. C. 320; 90 Tex. 275; 16 L. R. A. 347; 15 Minn. 49; 45 Minn. 53; 75 S. C. 355; 69 S: C. 539.</p> <p>cite: As to punitive damages: 65 S. C. 38; 81 S. C. 323; 79 S. C. 152; 83 S. C. 452; 65 S. C. 271; 62 S. C. 270.</p>

Before Memmingbr, J., Berkeley, April, 1911. Action by the Atlantic Coast Lumber Corporation against John Litchfield and John Litchfield, Jr. Defendants appeal. cite: As decisive of this case: 89 S. C. 328. cites: As to “quality” of conveyances of this general class: 80 S. C. 106; 12 Rich. 314; 77 S. C. 255; 11 Coke 46; 3 Am. D. 215; 13 Me. 122; 10 Gray. 48; 47 Me. 595; 1 Am. St. R. 551; 53 Id. 73; 37 S. W. 260; 70 S. W. 290; 123 Am.

Before Memminger, J., Aiken, October, 1910. Action by Julius Mills against the Southern Railway Company in court of Magistrate S. S. Bee.

Before DLVorr, J., Sumter, April, 1911. Action by Sumter Pine and Cypress Company against Atlantic Coast Line Railway Company. Defendant appeals. cite: Plaintiff had no right to the penalty: 86 S. C. 511. Claim should have been filed with nearest agent: 86 S. C. 510. oral argument.

Before Prince, J., Sumter, January, 1911. Action by Annie E. Kirby against Orlando D. Kelley et al. Defendants except. Mr. Stuckey cites: Orders striking out fourth defense is appealable: Code of Proc., 11 sub. 2; 87 S. C. 98. Notice of appeal from this order acts as super-sedeas: Code of Proc. 356.

<p>Judgments — Foreign Laws. — Nonsuit should' not be granted1 in an action in this State against one owning property here on a judgment rendered) in a foreign* State against a then resident of that State, where the evidence shows there was a final judgment and that the judgment was kept alive according to the laws of that State, and according to its laws presumption of payment did not arise because the defendant had left the State.</p>

Before Copes, J., Richland, April, 1911. Action by First National Bank of Richmond, Indiana, against V. C. Badham. Plaintiff appeals from order setting aside judgment in part for appeal costs. cite: Court has no jurisdiction to set aside the judgment: 11 Ency. P. & P. 161, 164; 1 Green’s Digest Am.

<p>Office — Magistrate—Mandamus—Parties.—It being admitted by the demurrer in this proceeding for mandamus that the petitioner has not the possession of the office of magistrate, but that another has, the Court will not require the salary to be paid him, but orders the petition- amended so as to make the party in possession of the office a party to the proceeding, so that the title to the office may be ■adjudged herein. Where the facts are not in. dispute the Court may adjudicate the right to air office in mandamus proceedings.</p> <p>The Chief Justice and Mr. Justice Watts think the Governor had the right to remove the incumbent without a hearing and appoint petitioner.</p>

<p>Before Wilson, J., Richland, September, 1911.</p> <p>Petition by W. B. and Guy B. Taylor for writ of mandamus against Governor Blease, chairman, and J. E. Swearingen, secretary, of the State Board of Education et al. Erom Circuit order, refusing the writ, relators appeal.</p>

Before Memmingpr, J., Barnwell,. December, 1910. Action by Julia Dobson and Joe Dobson against E. C. Duncan, R. Lancaster Williams and S. Davies Warfield, as receivers of the Seaboard Air Line Railway. Defendants appeal. Messrs. Lyles & Lyles cite: It is negligence to alight from a train in rapid motion: 82 S. C., 314.

Before SeasE, J., Edgefield, March term, 1911. Affirmed. Motion before Memminger, J., October. 1911. Action by Sallie Robertson against Western Union Telegraph Company. Defendant appeals on following exceptions : I. “In that his Honor erred in permitting the plaintiff to testify as follows: “ ‘You expected a reply to your telegram about 6 :30 that day? A. Yes, sir. Q. Now, from 6:30, on the date you sent your telegram to Edgefield, state whether or not were you uneasy.

<p>Before DfVorf, J., Darlington, Fall term, 1910.</p> <p>Action by Darlington County Fair and Driving Association against Atlantic Coast Line Railroad Company. Defendant appeals.</p> <p>Mr. White cites: The action is on contract: Hutch, on Car., sec. 1328; Elliott, sec. 1694; 3 Ency. P. & P. 821; 26 Vt. 247; 70 S. C. 83; 30 S. E. 968. The contract being made by defendant in its private character, punitive damages are not recoverable: 70 S. C. 120; 76 S. C. 193; 36 S. C. 110; 19 S. C. 353; 77 S. C. 467; 85 S. C. 165, 405; 17 Wall. 359; 3 Wood. Ry. L. 1580; Hutch. 566; 56 Am. R. 374; 30 L. R. A. 161, 193. No wilfulness shown: 73 S. C. 9.</p> <p>cite: Defendant is liable for loss from an unavoidable accident: 2 Brev. 488; 6 Cyc. 385; 1 Ency. 1101; 62 Am. D. 142; 14 L. R. A. 216. Defendant is guilty of a conscious and reckless failure to observe due care in delivering the horse: 85 S. C. 467; 69 S. C. 165; 76 S. C. 199; 60 S. C. 49: 89 S. C. 97: 75 S. C. 313: 86 S. C. 106: 87 S. C. 184: 88 S. C. 454. Recovery for punitive damages may be had under the pleadings: 89 S. C. 314.</p>

Before Shipp, J., Sumter, July, 1911. In the matter of the will of Ransom Dicks. Petitioners, Ransom Dicks et al., appeal. cites: When return should he filed: 35 S. C. 430. cite: Appellants having failed to perfect the appeal, it was properly dismissed: Code of Proc. 57, 58, 61; 35 S. C. 417; 73 S. C. 387; 61 S. C. 393. Pending appeal probate court had no jurisdiction to grant administration: 63 S. C. 131.

Before Wieso'n, J., March term, 1911. Two actions (1) by A. J. Humphries against Spartan-burg Railway, Gas and Electric Company, and (2) by Docia Humphries against same. Defendant appeals. cite: Punitive damages should not have been sent to jury: 44 Am. St. R. 476; 69 S. C. 444; 81 S. C. 143; 82 S. C. 87;'87 S. C. 160, 316. Duty of employees of street railway is that of due and reasonable care: 89 S. C; 276; 136 Cyc. 1517.

Before Watts, J., Spartanburg, July, 1911. Action by S. T. McCravey et al. v. Laura A. Otts el al., for partition.

<p>Before Shipp, J., Sumter, July, 1911.</p> <p>Action by C. P. Osteen and H. G. Osteen against F. A. Bultman and J. H. Cunningham. Defendants appeal.</p> <p>Messrs. Lee & Moise cite: The order is appealable: 34 S. C. 169; 65 S. C. 455; 49 S. C. 435. Respondents are estopped from claiming the effects of lis pendens: 35 Cyc. 1453; 114 N. C. 151.</p> <p>cites: Defendants are not entitled to jury trial: 43 S. C. 187; 53 S. C. 139; 47 S. C. 453; Code Proc. 274; 37 S. C. 169; 43 S. C. 192; 69 S. C. 186; 66 S. C. 459; 70 S. C. 253. Was lien created by the deed and subsequent act. of the parties? 72 S. C. 32; 16 S. C. 384; 14 S. C. 112; 27 Cyc. 982-3. Judge must construe written instruments: 66 S. C. 18; 17 S. C. 480; 46 S. C. 221; 59 S. C. 581.</p>

<p>Contracts — Parol Evidence.- — A party to a contract may prove by parol any part thereof not contained in the writing which does not vary or contradict it.</p>

<p>Before Prince, J., Richland, February term, 1910.</p> <p>Action by P. J. Smith against Southern Railway Company. Plaintiff appeals.</p> <p>cite: Ditty of carrier to warn employees: 43 N. Y. S. 922; 61 S. C. 468; 74 S. C. 102; 61 S. C. 556; 63 S. C. 494; 71 S. C. 156; 6 L. R. A. (N. S.). 646; 14 L. R. A. (N. S.) 952; 33 Cyc. 811; 82 S. W. 989; 55 S. E. R. 103; 45 N. E. 848; 1 Thom. & C. 292; 65 S. C. 214; 10 Rich. 227; 29 S. C. R. 905; 37 S. E. R. 226; 6 R. R. A. (N. S.) 658. Assumption of risks: 79 S. C. 502.</p> <p>cites: As to duty of master to warn: 72 S. C. 240, 339; 55 S. C. 483; 221 Ill. 547; 34 S. C. 292; 138 Eed. 728; 122 U. S. 194; 53 Wash. 279; 145 U. S. 418; 189 Mass. 358; 108 Am. St. R. 335; 109 Ill. App. 351; 30 S. E. 729; 54 Am. St. R. 542; 94 Eed. 946; 98 Eed. 682; 21 R. R. A. 660; 160 U. S. 438; 137 Fed. 904; 178 Mo. 514; 128 Mo. 328; 100 N. W. 30; 88 S. W. 422; 150 U. S. 248. Employee assumes risk of manifest perils: 84 S. C. 287; 72 S. C. 248, 237.</p>

Before Wilson, J., March term, 1911. Action by Johann Ladshaw against Southern Railway Company.

Before Gags, J., Oconee, March, 1911. Action by Carolina Timber Company against W. V. Holden and Isaac Holden. Defendant appeals. cite: As to continuance: 50 S. C. 403. Acceptance and delivery of deed: 2 Rich. Eq. 99; 16 S. C. 631. Construction of “heirs:” 36 S. C. 295. cite: As to witness having interest in deed: 77 N. W. 112; 62 L. R. A. 790; 46 So. 6; 95 C. C. A. 325. Chapman took a fee conditional: 1 Rich.

<p>Before Aldrich, J., Cherokee, Fall term, 1910.</p> <p>Action by B. H. Hardaway against Southern Railway Company. Defendant appeals.</p> <p>cite: As to jurisdiction: Drinker on Interstate Commerce Act 456; 68 S. W. 838; 9 So. R. 441; 83 S. W. 362; 74 Fed. 981; 105 Fed. 785; 58 Fed. 858. After paying freight charges with full knowledge of the facts, consignee cannot recover overcharge: 79 C. C. A. 489; 15 Rich. 284; 38 S. C. 365. Letter of initial carrier after delivery of freight cannot bind terminal carrier: 19 S. C. 353; 27 S. C. 63; 53 S. C. 448; 62 S. C. 127.</p> <p>cite: Recovery of voluntary payment: 30 Cyc. 1325, 1298; 63 S. C. 147; 12 S. C. 572; 13 Rich. 42. Jurisdiction of State Courts of overcharge of freight: 51 R. Ed. 561.</p>

Before Shipp, J., Lancaster, January, 1911. Action by John Williams against R. C. McManus. Plaintiff appeals. cite: Parol evidence is competent to show deed was intended as a mortgage: 45 S. C. 614; SI S. C. 398; 55 S. C. 51; 53 S. C. 547; 37 S. C. 489. Court will scrutinise transactions between mortgagor and mortgagee: 21 S. C. 898; 3 Pom.

Before DuVorE, York, April term, 1910. Action by Mackorell Brothers against Western Union Telegraph Company. Plaintiff appeals. Mr. Jno. R. Hart cites: Defendant should have made a reasonable effort to transmit by other lines: 82 S. C. 573; 2 Joyce on Elec. E., sec. 741. Defendant should have notified sender that message would be probably delayed: 55 Fed. 738; 12 Ind. App. 17; 45 Mo. App. 433; 117 N. C. 352; 74 S. C. 300; 16 S. C. 529; 77 S. C. 174.

<p>1. Telegraph Companies. — Before presumption of negligence of carrier arises for nondelivery of a telegram transmitted to the initial office by phone, it must be shown the carrier received the message correctly, or it would have so received1 it but for the negligence of its agents.</p> <p>3. Ibid. — If mental anguish result from nondelivery of a message, the carrier is liable for mental anguish damages, although the mes- ■ sage does not show that mental anguish would probably result from nondelivery or the carrier had' no notice of such condition outside the message.</p>

<p>Before Ernest Moore, Special Judge, Lancaster, Fall term, 1910.</p> <p>Action by John Hunter against Southern Railway Company. Defendant appeals.</p> <p>Messrs. McDonald & McDonald cite: The ticket sold here does not create a joint liability: 31 S. C. 35; 38 S. C. 431; 80 S. C. 139. Representations of agent do not amount to guarantee: 71 S. C. 533; 33 N. E. 373; 70 Mo. 673; 1 Elliott on R. R., sec. 303. Punitive damages are not recoverable here: 2 Fet. on Car. 1350; 35 S. C. 475; 62 S. C. 270; 69 S. C. 434.</p> <p>cites: Authority to sell shows authority to represent: 69 S. C. 327; 35 L. R. A. 600; Red. on Ry., sec. 201; 4 Am. R. 588. Scope of agent’s authority: 37 S. C. 377; 58 S. C. 143; 67 S. C. 391; 37 S. C. 198; 3 S. C. 9; 77 S. C. 546. Declarations of agent competent: 82 S. C. 467; 79 S. C. 288, 447; Elliott, secs. 213, 214; 72 S. C. 124; 65 S. C. 156; 41 S. C. 325; 65 S. C. 146; 79 S. C. 450; 81 S. C. 451. Declarations of agent responsive to allegations: 80 S. C. 42; 61 S. C. 334; 60 S. C. 390; 70 S. C. 10. Carrier must give information: 53 S. C. 210; 62 S. C. 138; 41 S. C. 410; 69 S. C. 133; 75 S. C. 142; 48 S. C. 174; Hutch., sec. 1067; 75 S. C. 142; 81 S. C. 323; 71 S. C. 447. Parol evidence admissible to show what the contract was: 86 S. C. 518; 88 S. C. 7; 69 S. C. 330; 65 S. C. 523; 71 S. C. 448. Relation of Ptillman train to the public: 83 S. C. 453.</p>

Before Aedrich, J., Richland, June, 1911. Action by R. O. Jones against J. F. Devereux. Defendant appeals. cites: Issue of title is only triable by jury: 53 S. C. 338; 33 S. C. 393; 38 S. C. 533; 31 S. C. 365. cite: Plat showing extent of claim is admissible: 1 Brev. 546; 1 Spears 183; 14 S. C. 543; 16 S. C. 133; 48 S. C. 473.

Before Prince, J., Hampton, Winter term, 1911. Action by S. P. Lipman against Atlantic Coast Line Railway Company. Plaintiff appeals. Mr. deLoach cites: Remedies provided by interstate commerce act are intended to 'supplement existing remedies: 123 Led. R. 789; 47 Fed. R. 772; 167 U. S. 447; 87 S. C. 107. cite: Conductor was right in collecting rate fixed by Interstate Commerce Commission: 87 S. C. 107; 204 U. S. 426.

Before Memminger, J., Aiken, June, 1911. Action by Hyman Charles Surasky et al. against Charles Weintraub et al. on several causes of action, the first and second of which are: “For a first cause of action. “The complaint of the above named plaintiffs respectfully shows unto this Court: 1. “That on or about the 6th day of July, 190S, the plaintiffs, Hyman Charles Surasky, Solomon Surasky, Samuel Surasky and Benedict Morris Surasky, and the defendant, Charles Weintraub,…

<p>Before Gage, J., Chesterfield, Spring term, 1911.</p> <p>Action by Louisa S. Wilhelm against Western Union Telegraph Company. Plaintiff appeals.</p> <p>cite: Issue of punitive damages should have gone to the jury: 70 S. C. 87; 69 S„ C. .545; 57 S. C. 333; 63 S. C. 333; 65 S. C. 430; 43 L. R. A. 314; 35 S. C. 493; 54 S. C. 498; 35 Ency. 831; 65 S. C. 133; 64 S. C. 495; 66 S. C. 544; 57 S. C. 333; 3 Ency. P. & P. 835; 6 How. 379; 19 N. H. 337; 36 Kan. 246; 6 L. R. A. 844; 34 S. C. 311; 35 S. C. 475; 70 S. C. 418, 87. Plaintiff suffered actual damages at least to amount of fee: 86 S. C. 242; 70 S. C. 418; 77 S. C. 56; 72 S. C. 290, 516; 71 S. C. 386; 70 S. C. 83. Failure to deliver in time to effect its purpose raises presumption of injury: 74 S. C. 495; 70 S. C. 16; 72 S. C. 116; 77 S. C. 399; 83 S. C. 8.</p> <p>cite: No evidence of wilfulness: 79 S. C. 160; 73 S. C. 379; 77 S. C. 399; 65 S. C. 93; 84 S. C. 477. Damages claimed are speculative and too remote: 65 S. C. 490; 76 S. C. 345; Suth. on Dam., sec. 959; 89 Am. St. R. 584; .124 U. S. 444; 51 Pac. 376.</p>

<p>1. Contracts — Writings.—Parol evidence that a written contract for the payment of money was made to be paid in professional services varies the terms of the contract.</p> <p>3. A MOTION TO RECOMMIT A CASE AND PERMIT AN ANSWER AMENDED may come too late to appeal to the Judge’s discretion.</p>

Before Copes, J., Richland, Spring term, 1911. Action by E. J. Frink against National Fire Insurance Company and A. C. Wakeley, receiver. Plaintiff appeals. cites: Appointment of receiver does not affect contracts: 44 At. R. 82; 17 Ch. Div. 337; 38 L. R. A. 97; 111 U. S. 110; 48 S. C. 74.

<p>Before Watts, J., Lancaster, November, 1911.</p> <p>Action by New York Life Insurance Company against Nannie B. Mobley. Plaintiff appeals.</p> <p>cite: The general law: 17 How. 443; 7 Cranch. 336; Adams Eq. 194; 3 Story Eq. 885; 2 Dan. Ch'an. Pr. 624; Pom. Eq. Jur., sec. 1364; 51 L. R. A. 875; 2 Ereem. on Judg.. sec. 495 ; 1 Black on Judg., sec 376 ; 84 Am. St. R. 744; 117 U. S. 665; 155 U. S. 38; 8 f U. S. 624; 156 U. S. 38; 117 U. S. 665; 84 U. S. 624; 84 A. S. R. 744. Law in South Carolina: 23 S. C. 165; Bail. Eq. 110; 10 S. C. 207. Direct attack: 23 S. C. 166; 84 Am. St. R. 744; Pom., sec. 1364; 84 A. S. R. 744. Form of action: 30 L. R. A. 80S. Remedy against officers: 34 S. C. 463; 84 Am. St. R. 744; 14 How. 584; 51 L, R. A. 876; 1 Black Judgt., sec. 377; 4 McC. 370. This case does not fall under section ipg of Code: Pom., sec. 839; 5 Words & Phrases 4540; 103 S. E. 118. Due process: 4 Wheat 581; 167 U. S. 414; McGehee on Due Process 76-7, 84; 93 U. S. 374; 167 U. S. 414; 18 Blatch. 1; 183 U. S. 436; 154 U.'S. 34; 304 U. S. 8; 195 U. S. 357; 307 U. S. 137; McGehee 90-1; 95 U. S. 715; 85 U. S. 457; 85 S. C. 138. Hearing is a right: McGehee 83; 93 U. S. 374; 167 U. S. 414; 74 N. Y. 183-8; 143 N. Y. 95; 18 Wall. 350; 79 S. C. 331; 95 U. S. 714; 85 U. S. 457; 195 U. S. 369; 33 S. C. 13; 37 S. C. 418; 17 S. C. 33. Definition of discretion: 1 Bouvier 580; 3 Words & Phrases 3096-8; 47 S. C. 498; 15 S. C. 330; 43 Ala. 303. Remedy by ipg of Code is zvithin descretion of Circuit Judge: 56 S. C. 31, 39; 64 S. C. 343; 17 S. C. 403; 53 S. C. 334; 51 S. C. 409; 71 S. C. 444. Hearing by affidavits is not a legal trial: 33 S. C. 13; 54 S. C. 473; 63 S. C. 331; 60 S. C. 668-9, 146; 51 S. C. 435. State cannot deny fundamental rights: McGehee 160; 175 U. S. 175; 194 U. S. 363; 195 U. S. 369; 93 U. S. 374.</p> <p>cites: The order is not appealable: 35 S. C. 44; 4 S. C. 11; 3 S. C. 393; 70 S. C. 550; 30 S. C. 564. Remedy is exclusive: 34 S. C. 453; 35 S C. 613; 56 S. C. 30; 77 S. C. 91; Black on Judg. 354. Only one form of action: Code 89; 39 S. C. 480; 40 S. C. 78; 35 S. C. 613; 46 S. C. 490; 57 S. C. 343; 53 S. C. 307. Motion under sec. ipg is exclusive remedy: 47 S. C. 363; 51 S. C. 405; 56 S. C. 38; 64 S. C. 343; 14 S. C. 630; 19 S. C. 453; 53 S. C. 333; 10 S. C. 369; 56 S. C. 31; 83 S. C. 505; 70 S. C. 160; 56 S. C. 31; 65 S. C. 133; 46 S. C.-490; 51 S.' C. 343; 34 S. C. 463; 49 S'. C. 569; 9 S. C. 383; 40 S. C.' 78; 39 S. C. 480; 39' S. C. 477; 35 S. C. 613; 45 S. C. 597; 2 Rich. 324; 34 S. C. 452; 41 S. C. 517; 32 S. C. 503; 35 S. C. 612; 46 S. C. 490; 89 S. C. 509. Void judgment cannot be attacked collaterally: 24 S. C. 405; 12 Law Ed. 655; 26 Id. 217; 50 Id. 748; 87 Am. St. R. 757; 94 Am. St. R. 843; 23 Am. St. R. 102; 21 Am. St. R. 356; 19 Am. St. R. 806; 34 S. C. 462. Due process of law: 78 Am. St. R. 855; 24 L. Ed. 512; 9 S. C. 283; 38 L. Ed. 485; 50 L. R. A. 588; 28 L. Ed. 572; 10 Ency. 301; 43 L. Ed. 226. Collateral attack: 56 S. C. 20; 35 S. C. 462; 9 S. C. 283; 52 S. C. 305; 89 S. C. 509; 77 S. C. 509; 17 S. C. 35; 89 S. C. 509; 24 S. C. 405. Plaintiffs’ cause of action is res judicata: 87 S. C. 135; 81 S. C. 87.</p>

<p>Before Watts, J., Greenwood, Spring term, 1911.</p> <p>Action by Ohio Pottery & Glass Company against B. C. Talbert. Plaintiff appeals.</p> <p>cite: 66 S. C. 61; 65 S. C. 510.</p>

<p>Before Wirson, J., Spartanburg, January term, 1911.</p> <p>Indictment against Charles H. Barber for breach of trust. Defendant appeals.</p>

Motion in the original jurisdiction of the Court. Mr. McMaster cites: Courts of equity have jurisdiction to enjoin public nuisances: 1 Spelling on Ex. Rem. 318, 2 High on Inj., sec. 1554; Joyce on Nui., sec. 416; 1 Ency. 64; 69 Am. Dec. 187; 42 A. R. 182; 18 Ves. 217; 19 Id. 617; 28 Kan. 735; 1 N. C. 12; 22 Ala. 190; 30 Ga. 506; 87 Ill. 453; 11 Abbott’s N. Cas. 313; 26 la. 379; 117 Ga. 434; 83 Pac. 598; 53 S. E. 603; 122 Ga. 754; 5 E. R. A. 193; 30 Am.