Volume 91 — South Carolina Reports

Before Shipp, J., Barnwell, December, 1911. Action by Laura Bellinger Jones et al. against Melvina Bellinger et al. The findings and conclusions of the master are : “That on the 11th day of October, A. D. 1892, one A. T. Woodward conveyed to the late Martin Bellinger and the defendant, Melvina Bellinger, the lot of land described in the complaint, upon the following limitation®: “ ‘To have and to hold all and singular the ©aid premises unto the said Martin Bellinger and his…

<p>Magistrate Court—Appeal.—Findings of fact by Circuit Court on appeal from magistrate court, if there is any evidence to support them* are final.</p>

<p>Before MemmingER, J., Sumter, July, 1910.</p> <p>Action1 by Richard C. Folk against James Brooks, Jane Brooks et al. Defendant Benjamin Jasper appeals.,</p> <p>-cites: What facts entitle purchaser of land to prove contract by parol: 22 S-. C. 32; 27 S-. C. 621; 21 S. C. 455, 480; 28 S. C. 58; 39 S. C. 356; 48 S. C. 496; 63 S. C. 551; 40 S. C. 147. Possession is sufficient notice: 22 S. C. 32; 23 S. C. 490'; 24 S. C. 285; 28 S- C. 58.</p>

<p>Before Gage, J., Greenville, March term, 1911.</p> <p>Action by Peoples Bank of Greenville against Hattie K. Speegle, M. J. Tanner, adrnr., and H. C. Wood. Hattie K. Speegle appeals.</p> <p>cites: Writing the name across the warrant is only an assignment: 7 Rich1. L,. 13; 2 Ency. 1091; 38 S. C. 138. The ñndings of the examining committee conclude nothing: 81 S. C. 485; 18 S. C. 135. This claim must be sued before county commissioners: 24 S. C. 54:3; 85 S. C. 297; 81 S. C. 201.</p> <p>cite: Assignor of nonnegotiable paper, if invalid, is liable to assignee for amount paid: 2 Ency. 1090; 4: Cyc. 82, 84:; 81 S. C. 90; 87 A. D. 382; 51 A. D. 116; 163 U. S. 4:00; 111 N: W. 499.</p>

<p>Before Ernest Moore;, special Judge, Chester.</p> <p>Action' by City of Chester against National Surety -Company. Defendant appeals.</p> <p>No arguments1- furnished Reporter.</p>

Before Gage, J., Greenville, Jume, 1911. Action1 by- W. A. Briggs and J. B. Jennings against Donaldson) & Hoke, befare E. Inman, magistrate.

Before Gage, J., Beaufort, July, 1911. Motion in -case of Gus'tave Sanders agaimslt D. Bamd'reth Seed Company. Defendant appeals. cite: Attachment should have been made at or before service of 221; 63 S. C. 104; 69 S. C. 57; 29'S:-Cl sutpgons: 83 S. C. 498.-'- cites:'It is not necessary to serve on defendant any paper except siommons: 43 S. C. 339; Code of Proc. 248. Debts due defendant can be attached: 6 S. C. 446; 54 S. C. 582.

<p>Before Prince, J., Florence, October, 1911.</p> <p>Indictment against Alex. Weldon and William Borroughs for murder. The report of special Judge George Brown, who tried the case, is :</p> <p>“The entire appeal- record1 having been1 referred to- me a-s the trial Judge ini the above stated case, by an order of the Supreme Court for a full report upon ‘all the matters alleged in the affidavits and -exceptions,’ to the end that I certify to said Court a ‘statement of all 'the conditions surrounding the trial so far -as they -are germane to the exceptions quoted’ in said1 order ‘and the matters alleged in the affidavits appearing in the reoord-,’ I beg’ leave to- ‘report’ and ‘certify’ that I went from Darlington to Florence on the day of the trial on the -car by morning train, arriving on or about schedule time, 8 :3d-or 9 o’clock a. m-., and Court convened at 10 o’clock a. m.</p> <p>“There was- a large crowd in Florence during the day and when this is stated all is stated which I know which could excite even casual interest -except that an atrocious -assassination of a worthy citizen bad -been committed and that the parties charged with' 'the -crime were there and then to be tried and the presence- of the crowd was supposedly due to¡ these facts. The presence of such a crowd under these circumstances was natural and proper and was no surprise to me. I saw very many there personally known to- me to be of the best citizenship of the county and of its most law abiding and patriotic personnel. Why that -crowd is denominated a mob I do not know. It certainly manifested no mob spirit to my eye or within my hearing. It was just simply a crowd and quite a crowd for Florence court room and that is all that can1 be said about it except ‘that it was the best bebav-ed crowd! I ever saw,’ and I am here quoting in effect my own words when defendants’ motion for a new trial- was overruled. It did crowd within the bar, of which fact I was- not unobservant, but to say that it was ini possession of the courthouse and 'held the same during the trial is a gross mis-coni-oeption of the conditions as I saw them. I had a right to assume and did assume that the presence of that crowd was for a lawful purpose not only consistent with the best citizenship, but composed, as it was, in support of law and order. It was certainly wholly lacking in any element of a riotous assemblage and in no respect was it disorderly; and in this regard, as I am expected to make ‘a full report,’ it is proper that I should particularize by saying that I saw no evidence of drunkenness ('or even evidence of drinking) in' the crowd and it was in all respects quiet and well behaved. An individual instance of boisterousoess or bad conduct did not come within my observation during ‘the term’. In every instance when I observed that it was becoming too much crowded within the bar or my attention was called to such conditions my admonitions received the most respectful consideration and obedience, and there was never any crowding within the bar that in any way interfered with the orderly dispatch of the business’ of the 'Court or with the rights- of counsel or the accused.</p> <p>“If the jury was overawed, intimidated or put in fear I am at a loss to know what did it. No member of the jury made any complaint before, during or since the trial- to- me; the sheriff was there and he likewise made no complaint. I went to and from the courthouse unattended and I have yet to see or hear of any threats or overawing condition®. There was no military in attendance and none suggested, though there is an excellent company in Florence, one in Darlington 'and another in Timmoneville, each only ten miles distant.</p> <p>“Counsel for defense did not request 'the three day® and copy of the indictment to which he was entitled on demand, and such demand1 would most certainly have been granted without any apprehension of danger to counsel or defendants'. If there was anything improper or irregular in this trial I do not know it, and as long as the statute stands for the speedy trial- of criminal offenses at special 'terms, I doubt if there will ever be in this State a more quiet and less sensational trial.</p> <p>“Defendants were ably defended, and the result of the trial is- due to the weight which the jury g-ave to the 'testimony, which is their exclusive -province.”</p> <p>The following affidavits were submitted -by the appellants:</p> <p>“Personally appeared W. E. Clayton, who, being sworn, says that 'he was preparing to go to the King's tree Court, which was then ini session, he having several equity cases before that court, when J. A. Muldrow, clerk of the court for Florence county, then assembled as a special Court to try Alex. Weldon and William Burroughs and under a separate indictment one Ham for the murder of El-ihu Moye, informed- deponent that the special Judge wanted to see him'; d-ep’onent went to the Court and the special Judge informed him that he wanted an experienced lawyer to defend) Alex. Weldon and William Burroughs, they having no counsel; that deponent stated he would defend them; that when) deponent entered into the court room he found a crowd occupying every available space in the court rootai; that- on -the -streets was 'an unusual crowd for that city; that he heard -expressions1 in regard to lynching of the parties accused of the killing of Moye; that when he entered the court room it- was -all he could do' to push his way through the crowd. Every seat was taken up, the isles were full, and the bar reserved for the lawyers' was full. That under conditions- surrounding, deponent did not dar-e to ask for his three days a© by law he was entitled to, believing as1 he did, that then and- there his clients would have 'been murdered; deponent 'knew nothing of his defense, but went into it, without knowledge and under the testimony, as the only testimony against them was the testimony of Ham'. That after the testimony was taken and lie had made his-argument, deponent left the court room1, overcome by the fumes of the crowd, but asked the Judge- to protect the rights of the accused, which he promised to do. That during the trial of the case deponent did not ,see the jury until he addressed them, from the crowd intervening; that on several occasions deponent requested the Judge to compel the sheriff to clear away the -crowd that he might see the witness whom lie was. examining. That deponent left the courthouse after he 'had made bis argument. That while at supper at his home deponent was- informed that the jury had brought in' a verdict of guil'ty as to his clients. That deponent immediately repaired to the Court and with difficulty forced an entrance from the crowd, and found the -Judge about to pass sentence. That deponent immediately moved for a new trial’, which was argued and overruled, and a? deponent left the courthouse he heard several voices say, it is a good thing a new trial was not granted, as- if said new trial had been1 granted the prisoners would not have got back to jail alive. W. F. Clayton.”</p> <p>Sworn to.</p> <p>“Personally appeared Pucien W. McPemore, who, being sworn, says that on the evening after the jury rendered a verdict of conviction in the case of the State against Alex. Weldon and William Burroughs' and on the morning following deponent heard on the streets- of Florence repeatedly that if W. F. 'Clayton, Esq., hadisecured a verdict of acquittal for these defendants both the negroes and their attorney would have been lynched.</p> <p>Sworn to. PuciLN W. McPlmorL.”</p> <p>“Personally appeared R. Pee Brunson, who, being sworn, says: That the day the defendants were tried in Florence, there was an immense crowd on the streets; that he went to the courthouse, and found the same full, bar, passage, and every available space; that 'he obtained a position1 on a barrel just behind the Judge’s- seat overlooking him; that be distinctly recollects- hearing' Mr. Clayton, who was conducting the defense, request the Judge to order the sheriff to clear away 'the crowd so that he could see the witness whom he was examining, or words :to that effect; that never in his experience has he seen such a crowd in the courthouse.</p> <p>'Sworn to. R. Dee Brunson.”</p> <p>“Personally appeared D. Gordon Baker, who, being sworn, says1: An atrocious, murder bad-been perpetrated in Florence county, a worthy citizen had been1 shot down in his own 'house, excitement was intense, a special term of Court was ordered, an immense crowd came to Florence, oo the day of the trial; that on the day of the trial as an1 attorney practicing before the Court, he went to the rear entrance; to the bar reserved for the lawyers', staid there only a short time as1 the crowd was so dense and the respiration; bad, and left believing that the jury was overawed by the crowd.</p> <p>D. Gordon Baker.”</p> <p>The letter of F. F. Covington, stenographer 12th Circuit, who, being in Court, stated that he wished it considered that this letter was sworn to, is:</p> <p>“Marion, S. C„ April 17, 1911.</p> <p>“W. F. Clayton, Florence, S. C. Dear Mr. Clayton1:</p> <p>“Thanks for brief and points and authorities in Weldon and Burroughs case; I hope you -will win out; you have made a strong showing. If the Supreme Court could have witnessed that trial 'as you and I saw it, I don’t think they could fail to find a reason for granting a new trial. True that crowd that packed the court room was smiling and good matured, -but it was because things' were going their way. There was' blood lust in their hearts', 'and if there had been a bitch in' the proceedings' which indicated that they would be balked of their prey, the demon of the mob would have uttered a howl that would have been heard all over the State, and two lifeless bodies, and it may be more, would have been borne out of that court room.</p> <p>Yours very truly, F. F. Covington.”</p> <p>From motion refusing new trial defendants appeal.</p>

<p>Before Shipp, J., Darlinigton, April, 1911.</p> <p>Action by Elias Kelly and Burrell J. Kelly against John Tiner. The complaint is:</p> <p>“The plaintiffs, -oompdaiiniiiTg of the defendant, allege:</p> <p>1. “That the old ‘Kelly Cemetery’ is a plot of land in Darlington county, situated on the public road leading from Harbsvillei to Timmonsvilie, containing two (2) acres- of land, and -is bounded on the east by the s'aid public road leading from Hartsvilla to Timmonisville and fronting thereon'one acre; and is bounded on all other sides by lands of the defendant, John Timer; and is mow being used and has been used for many years as a public burying ground.</p> <p>2. “That from1 plaintiff’s 'best knowledge, information and belief, said knowledge, information and belief, having been obtained from the oldest inhabitants in the neighborhood, about eighty or ninety years ago; one1 Jacob Kelly, a large-landowner of that neighborhood, set apart and gave toi the public, the two acres of land 'hereinbefore described, as a public burying ground and from that time until- now tine said two acres of land thus set apart, givenl 'and dedicated to- the public, by the said Jacob Kelly has been known as the ‘Kelly Cemetery,’ and 'has- been used exclusively by the public all •these years exclusively as a- -burying ground. That the said two acres, after having been given and dedicated to the pub- • lie as aforesaid, and for the purposes -aforesaidi, was cut off and separated from the rest of the tract "of l'and by rows of trees, the public at large taking; >-i,kzí ssiom -of the same, and has ever since kept peaceable, continuous and uninterrupted possession of the same, caring for it, cleaning’ it off, keeping the g’raves in' good condition, and putting a wire fence around the- graves to keep the cattle from' ’trampling upon and desecrating this -sacred spot.</p> <p>3. “That these plaintiffs are grandsons of 'the said Jacob Kelly, who originally set apart and gave the said two acres of land aforesaid for the- purposes hereinbefore stated, and that these plaintiff-si can remember for fifty years that the said two acres known as aforesaid as the ‘Kelly Cemetery’ was 'then owned and possessed: 'by the public as a place to bury the dead and no member of tire Kelly family as- heir at law of the said Jacob Kelly or any other person, prior to the acts of the defendant hereinafter stated, ever dreamed of laying claim to any part or parcel of the said twoi acres or did any. of them ever attempt for all these years to exercise any acts of ownership over the same except to bury their dteadi and aid' and assist tire public at large ini keeping clean and in good order the said cemetery.</p> <p>4 “That these plaintiffs are residents of that neighborhood, 'and have been throughout almost their entire lives and from information received from the very oldest citizens olf the community they are informed 'and believe that at the sale of 'the said lands of the said Jacob Kelly at the courthouse door in Darlington 'it was publicly stated that these two acres,' known as the ‘Kelly Cemetery’ was excepted, it being the property of the public and these plaintiffs have personally known all of the owners- for the past fifty years of the tract of land* from which 'the said two acres was cut off nearly an 'hundred yearsi ago, and at no time did either or any of them-, lay any -claim- to any part or parcel of the -same, or exercise -either publicly or privately any a’ct-s of ownership over the -same except to bury their dead andi aid and assist the public -in- preserving and keeping! in-taict the said two acres of land for 'the exclusive and sole purpose of burying the dead and at all 'time’s did the owners of said original tract of land own, and admit publicly and privately, that they did not own or possess any part Or parcel of the ‘Kelly- Cemetery,’ but that the same belonged to the public for the purpose of burying the dead.</p> <p>5. “That these plaintiffs are the grandsons and heirs of the said Jacob Kelly, and are now and 'have- been citizens' of that community almost during, their entire lives, that they, with the rest of the public, 'have had peaceable, open, notorious, hostile, -continuous and uninterrupted possession of the said two acres Of land) known asi the ‘Kelly Cemetery’ as aforesaid) for more than, fifty years; that their parents; grandparents, and great-grandparents and other kindred, for nearly a hundred years: ’have been buried 'in. 'this cemetery, that each of these plaintiffs, have children buried there, that they expect if t’he ruthless hand of its desecrator and detroyer, should be stayed, that this sacred spot shall be the burial place of these plaintiffs, their children, grandchildren, etc., on down through the corridors of time.</p> <p>6. “That on the days of February, March, April and May of 1900, the defendant, John T'iner, unlawfully, wilfully, and wantonly burnt down the posts,, holding the wires around the graves, cut down and destroyed most of the large trees, planted by hands long since dead and buried in the sarnie graveyard, cut down and destroyed some of the grass, shrubbery, etc., on the said two- acres, ploughed up into large beds a part of the land, and threatens 'to continue to commit the aforesaid depredations, and if he is not prohibited these plaintiffs verily believe that he will continue to thu9 illegally and unlawfully trespass upon this property, cut down and destroy the remainder of the old trees, the’ old landmarks as aforesaid, and will continue to, destroy the shrubbery, mutilate the posts, and' make the said two acres, the old ‘Kelly Cemetery,’ unfit for the purposes of buryingthe dead, the only use it 'has been dedicated to for these past eighty or ninety years.</p> <p>' 7. “That if the defendant be allowed to- continue his acts of trespass and depredations as aforesaid, these plaintiffs will- be irreparably injured, and these plaintiffs' verily believe f-ronr the defendant's past conduct, his threats, etc., that he does intend to continue his illegal; wilful, and wanton acts until the old graveyard -is made 'a -cotton patch or corn field.</p> <p>8. “That these plaintiffs have no adequate remedy at law, and unless the Court restrains and -enjoin's th'e defendant from any further illegal, wilful and' wanton, trespasses, -and depredations, as aforesaid1, these plaintiffs will be irremedlial and permanently injured and damaged and the aforesaid ‘Kelly Cemetery’ forever destroyed so that these plaintiffs 'and' the community at large be deprived from burying their dead in the old family graveyard, and these plaintiffs desire that an injunction be issued, restraining and 'enjoining any further acts or trespass upon the aforesaid land known as the old ‘Kelly Cemetery,’ by the defendant, 'his agents and servants, or by any other party or parties, acting for 'him or by his authority.</p> <p>“Wherefore, the plaintiffs pray judgment against the defendant, that the said defendant, his agents 'and- servants and all persons acting under his authority and direction, be perpetually and permanently enjoined from entering upon or trespassing in any way upon the said two acres of land above described, and known as the old ‘Kelly Cemetery,’ and from mutilating, cutting down and destroying any' of the posts, -trees, shrubbery, etc., standing upon the said two acres of land, known as -aforesaid as the old ‘Kelly Cemetery;’ and for the costs and disbursements of this action, and for such other and further relief as to the Court doth seem just and proper.”</p> <p>Grounds of demurrer:</p> <p>It appears upon the face of said complaint that it does not state facts sufficient to constitute a cause of action, ant the following grounds:</p> <p>I. “Because there is no allegation that the alleged acts of the defendant constitute a nuisance.</p> <p>II. “Because there is no allegation that the legal remedy of indictment has been exercised and found unavailing, indictment and not injunction being the proper mode of redress.</p> <p>III. “Because there -is no 'allegation of peculiar and special damage sustained by plaintiffs which would -entitle them to injunction relief.</p> <p>IV. “Because there is no allegation, that the defendant is insolvent.</p> <p>V. “Because there is utter failure to state facts constituting any equity.”</p> <p>Order sustaining demurrer:</p> <p>“The issues of law arising upon the demurrer of the defendant to plaintiffs’ complaint herein 'having: come duly on for trial before me at the regular term of this. Court on the 7th day of April, 1911, now, after hearing P. A. Miller, of counsel for defendant in support of the demurrer, and J. B.. McLaughlin, plaintiffs’ attorney, in opposition thereto, and due deliberation! having been had thereon, I decide and find 'as follows:</p> <p>“That said complaint does not state facts sufficient to constitute a cause of action because it appears upon the face of said'complaint that there is no allegation of peculiar and special damage sustained1 by the plaintiffs ■which, would entitle them to injunction relief.</p> <p>“It is therefore ordered that the defendant have final judgment in his favor sustaining the demurrer to the complaint and dismissing said complaint with costs.</p> <p>“It is further ordered that in the event of an appeal to the Supreme 'Court from this, order the temporary injunction, heretofore granted by Judge Wilson, be continued pending said appeal, provided the plaintiffs execute a new injunction bond in the sum cuf two hundred dollars1, in accordance with the usual form of injunction bonds', in favor of the defendant and that the said bond be filed within ten days with sufficient surety to be approved by the clerk of this Court.”</p> <p>Plaintiffs appeal on following exceptions':</p> <p>1. “Because his Honor, Judge Shipp., erred1 in sustaining the demurrer, when he should have held that the complaint was sufficient aqd did state facts upon ■which injunctive relief should have 'been granted.</p> <p>2. “Because this Honor, Judge Shipp', erred in 'holding ‘that said complaint does not state facte sufficient to constitute a cause of 'action because it appears upon the face of said complaint that there is no allegation of peculiar and special damage sustained by the plaintiffs which would entitle them to injunctive relief.’ He should have held that the complaint did state a good cause of action and that there was an allegation of such peculiar and special damages as would entitle the plaintiffs to the injunctive relief prayed for.</p> <p>3. “Because his Honor, Judge Shipp, erred in holding after the following amendment was proposed: ‘Elias Kelly and' Burrell J. Kelly, as individuals', 'and as heirs at law of Jacob Kelly, deceased'—and in behalf of the- other heirs and Jacob Kelly, deceased, and in behalf of the public in general who have dead buried in the graveyard described in the complaint.—Biffs. ’</p> <p>“ T do not think that the amendment will do any good'— you got the benefit of that when you made the motion to amend. I would grant the privilege of amending if it would keep this case in Court. I do not think it would.’ When he should have held that if there were a defect of parties, that the amendment would have cured that defect and that these plaintiffs in their own behalf, and as heirs at law of Jacob Kelly, deceased, and in behalf of all those who have dead buried there, would be entitled to the injunctive relief asked for in the complaint.”</p> <p>cites: The relatives may maintain such action: 6 Cyc. 720-1, 723; 134 N. Y. 542 ; 53 Am. R. 613; 56 Am. R. 32; 112 Ga. 884; 53 A. R. 613; 13 Cyc. 268.</p> <p>cite: Injunction does not lie where the remedy at lazv is adequate: 81 S. C. 392; 44 S. C. 256; 41 R. R. A. 219; 66 R. A. R. 286; 52 R. R. A. 299'; 80 S. C. 575; 1 Hill 365; 3 S. C. 438; 24 S. C. 39; 30 S, C. 545; 46 S, C. 337; 54 S. C. 343; 83 S. C. 393; 81 S. C. 370; 9 L. Ed 1013. Plaintiffs suffer no special or peculiar damage other than the public: 54 S’. C. 343; 46 S. C. 337; 83 S. C. 371. These plaintiffs cannot maintain this action: 34 S. €. 39; 78 S. C. 308; 64 S. C. 577; 65 S-. C. 136; 17 S. C. 304.</p>

<p>Before Shipp, J., Marion, May, 1911.</p> <p>Action by The Holliday Co. against Raleigh & Charleston R. R. Co. Defendant appeals.</p> <p>cites: 64 S. C. 493; 81 S.'C. 579; 82 & C. 1.</p> <p>cites: 83 S. C. 557; 50 S. C. 398; 85 S. C. 259; 82 S. C. 1; 81 S. C. 514.</p>

Before Wieson, ]., Richland, October, 1911. Action by B. E. Johnson Publishing Company against State Board of Education. Plaintiff appeals. cites: One party has no right to put an interpretation on a contract not warranted by tlie call for bids: 26 Ohio1 State 411; 15 Tex. Civ. App. 433; 48 At. R. 3'52; 93 U. S. 242; 26 Mon. 22. cite: Failure to deliver or tender the bond released State Board from any duty to accept the contract: 119 U. S. 151.

<p>Limitation of Estates.—A conveyance to C. and his heirs forever, then reserving a life estate to grantor and his wife, and after the falling in of the life estates then to C., to have and to hold forever to her bodily heirs, carries a fee simple absolute to C.</p>

Before Ernest Moore, special Judge, York, November term, 1910. Action by W. E. Ferguson against Southern Railway Company. Defendant appeals. cite: There is no liability for a loss which could not reasonably have been foreseen or anticipated: 13 Emcy. 921; 21 Emcy. 486, 489; 98 S. W. 939; 24 Am. St. R. 929; 15 Col. 333. The negligence intermingling with the act of God must be the co-operating or proximate cause: 29 S. C. 101; 65 S. C. 502; 110 Am. St. R. 361; 117 Mo.

Before Watts, J., Union!, May term,. 1911. Action by J. P. Wilcox against: Southern Railway. Defendant appeal®. cite: Provisions of interstate ticket; Sec. 15 Interstate Com. Law1; Barnes on Interstate Transportation, -sec. 570, Sub. A. & E. Ticket collector cannot make contract of passage: Code 1902, 2163, 2571; 2 Hutch., sec. 117; 1 Elliott, sec. 302; 3 Thomp'. on Neg., sec. 2571.

Before Gagd, J., Greenville, March 'term, 1911. Action by the Fourth National Bank of Greenville against the City of Greenville.

Before Wilson, J., Greenvil-l-e, April term, 1910. Action by City National Bank against Cooper & Griffin. Defendant® appeal. cite: New trial should'have been granted for disregard by jury of instructions: 8 Ohio 4657 L. R. A. 363, 559; 112 U. S. 27G; 13 R. R. A. 241: 7 N. Y. 459; 11 N. Y. 203; 8 Am. R. 97; 30 N. W. 199; 12 Pac. 597; 36 Am. R. 505; 34 Am. Dec. 289; 36 Am. R. 264; 3 Ency. 810, 802, 804; 74 Am.

<p>Before SeasE, J., Anderson, July, 1911.</p> <p>Action by Mamie McC. Brown, D. A. Ledbetter and J. M. Paget, as exors. of Fred. G. Brown, against Julia Brown, Zoe and John LaFoy et al. The named defendants' appeal.</p> <p>cite: Code 1902, 2481, 2475, 247(5; 29 Car. 2, C. 3, S. (5; Jarman on Wills 147; Tiedeman on Real Property (536 ; 2 N. & McC. 271; 2 Brev. 278; 2 Des. 524; Harp. 314; 11 Stat. 238; 42 Am. R. 254; 36 L. R. A. 176; 98 Am. St. R. 809.</p> <p>cite: Harp. 314; 2 Brev. 279 ; 1 Jarman on Wills 291, 151; 16 S. C. 45.</p>

Before Memminger, J-, Berkeley, March term, 1911. Action by M. Joyner against Atlantic Coast Bine Railroad Company.

<p>Wills—Revocation of Legacy.'—Under the provisions of a will that “If any of the parties above mentioned shall enter a suit in law to break my will, he shall have $o only and his share shall be divided among them mentioned in the fourth division of my will,” a legatee contesting the will on the ground of forgery is not thereby deprived of his legacy.</p>

Before Aldrich, J., Richland, June, 1911. Action.' by- T. C. McDonald against- J. W. Fl-oyd and W. A. Floyd. Defendants appeal. cite: Motion in case is proper practice: 5 S. C. 5; 34 S. C. 452; 35 S. C. 612; 40 S. C. 150: Magistrate court acquired no jurisdiction by this summons: Code of Proe. 88, Sub. 16; 43 S. C. 173; 50 S. C. 23; 52 S. C. 86; 71 S. C. 225; 17 S. C. 75; 75 S. C. 40-7. cites: Transcript must shotv everything necessary to give jurisdiction: 28 S. C. 110.

<p>Damages.'—A junior chattel mortgagee after condition broken seizing and selling the chattel is liable to a senior mortgagee, whose mortgage was duly recorded, for the damages he sustains by the impairment of his security, whether the junior mortgagee had actual notice of the senior mortgage or not.</p> <p>Graham v. Seignious, 53 S. C. 132, distinguished from this case.</p> <p>Mr. Justice Watts dissents.</p>

Before Memminger, J., Orangeburg, March term, 1911.- Action- by Moses Watson against Atlantic Coast Line R. R. Co. Defendant appeals. cite: Bngineer and brakeman are fellow servants: 78 S. C. 413; 77 S. C. 328.

<p>, Before’DeVorE, J., Sumter, May, 1911.,</p> <p>Action by Friday Kersbaw against W. B. Burns. Plaintiff appeals.</p> <p>cite: What is an appurtenant easement? Washburn on Eas., 45; Jones on Eas,, sec. 34; 77 Ana. St. R. 677; 14 Cyc. 1141; 21 S. C. 221; 27 S. C. 549; 49 ICy. 463; 41 S. E. 585; 10 Mas®. 183; 114 Mass. 382; 45 N. W. 958; 34 S. C. 208; 14 Cyc. 1140; 42 S. E. 723. In construing a deed the habendum clause controls the granting clause: 165 Mo. 380; 65 S, W. 579. No specific zuords are necessary to create an easement: 10 Enicy. 409. Deed should be construed more strictly against the grantor: 51 S. E. 816.. Party accepting a deed and recording it is estopped to deny its recitals: 57 S. C. 50.7; 16 Cyc. 784-5.</p> <p>No citations.</p>

<p>■Before Gage, J., Lexington, November, 1910.</p> <p>Action by Central National Bank of Kansas City against D. E Efird et al. Plaintiff appeals.</p> <p>ci-tesn Parol evidence is not admissible where it varies the writing: 61 S. C. 166; 65 S. C. 138; 72 S. C. 364; 79 S. C. 499; 80 S. C. 43; Green, on Ev., sec. 277; 104 U. S. 30; 13 S. C. 338; 46 S. C. 412; 52 S. C. 154; 77 S. C. 78; 83 S. C. 204; 85 S. C. 419. Court should have construed the note: 81 S. C. 229; 19 S. C. 124; 15 S. C. 10, 296; 22 S. C. 288; 24 S. C. 497.; 46 S. C. 220; 59 S. C. 591; 3 S. C. 253; 6 Cyc. 419; 115 111. 407; 66 S. C. 22. The words alleged to have been written on the note would not destroy its negotiability: 108 Mich-. 184; 4 Fed. 25; 109 Mass. 36; 18 S. C. 212; 25 S. C. 123; 86 S. C. 170. Bvidence as to breach of zvarranty and failure of consideration should not have been admitted: 32 S. C. 538; 78 S. C. 531; 81 S. C. 541; 28 S. C. 243 ; 8 Cyc. 229. Presumption of notice does not take place of proof of notice: 28 S. C. 149 ; 8 S. C. 302; 23 S. C. 239; 32 S. C. 236.</p> <p>cites: The interlineation after execution 'rendered the note nonnegotiable: 28 S: C. 504; 69 S. C. 30; 48 S. C. 308; 1 Dan. Neg. Inst, sec.'52; 35 Am. R. 293;’ 27 S. W. 1071; 8 N. E. 579; 14 Pa. 'St. 205; 6 Wis. 2Ó6; 114 N. W. 1059. A .material alteration destroys validity .of note: .2 Ency. 193; 2 Dan. Neg. Inst., secs'. 1347, 1413 4 Pac. 1022; 105 -N. W. 309; 92 U. s’ 830; 37 N. E. 845; 20 Am. Dec. 518; 50 Miss- 326 ;T7 Mo; App. 501; 16N/W. 819; 1 Dan. Neg. Inst., secs. 149, 154. Parol evidence is admissible to show indorsement was on note when delivered to payee: 99 Am. Dec. 53; 33 Pac.-470 ; Dan. Neg. Inist. 1417-8, 154.</p> <p>cites: Any material alteration of a note destroys it as to parties not consenting: 32 S. C. 239; 8 ■Cyc. 29</p>

<p>1. Evidence—Cross-Examination—Reply.—The trial Court did not hold that cross-examination should be confined to the subjects touched upon in the examination in chief. Whether, cross-examination is in reply is a matter of law.</p> <p>Where the plaintiff alleges a physical hurt is the cause of an injury, and the defendant alleges the trouble is mental, on cross-examination of an expert witness put up in reply by plaintiff defendant should be permitted to cross-examine him as to the effect of the disease of hysteria on the body. Me. Chief Justice Gary dissents on the ground that the scope of cross-examination is entirely within the discretion of the trial Judge.</p> <p>2. Master and Servant—Appliances.—The issue of failure .to inspect an appliance may be submitted to the jury on inferences drawn from other evidence, without any affirmative evidence of failure to inspect.</p> <p>3. Carrier—Passenger.—Negligence of the carrier is presumed from injury on a passenger train to the passenger by an instrumentality or agency of the carrier.</p> <p>4. Damages—Suffering.—Charge complained of as having been on the facts, held to be a hypothetical statement of the right to recover, and if this right is found to exist the plaintiff is entitled to recover for past suffering and such as she may endure in the future, if her injury is permanent.</p> <p>5. On a passenger train the carrier is held to the highest degree of care for the safety of the passengers in transportation.</p> <p>G. Remarks by Counsel—Waiver.—Failure to call the attention of the Court to objectionable remarks by counsel in argument and to except on failure of Court to suppi ess is a waiver of the right to object afterwards.</p>

<p>Before Aldrich, J., Cherokee, November, 1910.</p> <p>Action by W. B. Settlemeyer against Southern Railway— Carolina Division. Plaintiff appeals.</p> <p>cite: The Mason cese on which the trial Court relied is limited by recent decisions: 55 S. C. 422. Railroad company is liable for causing fright to horses: 33 Cyc. 1153. Courts will take judicial notice that horses will be frightened by uncommon odors: 16 Cyc. 852, 874. It is negligenes to. obstruct a highway: 66 S. C. 246; 53 S. C. 121; 58 S.' C. 223; 47 S. C. 381; 63 S. C. 371; 84 S. C. 536. ■ ■</p> <p>cite: The negligent act complained of must have c:used the injury: 102 Am. St. R.; 58 L. R. A. 399; 81 Am. St. R. 204; 45 N. W. 1014; 408 S. C. 390; 38 S. C. 282; 1 Strob. 525. Plaintiff cannot recover for fright caused by the rabbits, because not alleged: 55 S. C. 483; 76 S. C. 560; 84 S. C. 60; 88 S. C. 570.</p>

<p>Before Shipp, J., Lee, Summer term, 1911,</p> <p>Indictment against B. S. Beasley. Plaintiff appeals from order quashing.</p>

<p>Before SeasE, J., Anderson, May term, 1911.</p> <p>Indictment against John Robinson. Defendant appeals.</p> <p>cites: 73 S. C. 383; 81 S. C. 379; 85 S. C. 269; 60 Pac. 112; 12 A. C. R. 585; 24 N. W. R. 843; 27 Cal. 319.</p> <p>cites: 87 S. C. 244.</p>

Before Watts, .J., Union, June, 1911. Action- by J. H. Wilkes & Company et al. against B. E. Arthur et al. Nearly all the defendants appeal. Mr. Johnson cites: Passing of title on sale of personal property depends on intention of parties: 33 Am. St. R. 810; 67 S. C. 377. Judgment for full liability against stockholders should be entered on assessments made thereon: 79 S. C. 9.

<p>Before Watts, J., Spartanburg, Jume, 1911.</p> <p>Action by Burnett and Johnson against J. H. Senn. Plaintiff appeals.</p> <p>cites: What Stover said to the phone should have been excluded: 63 E. R. A. 988; 12 Ency. 478; 5-5 S. E. R. 495; 35 111. 540; 103 111. App. 632; 142 N. Y. 215; 27 Pa. Sup. Ct. 366; 60 S. C. 71; 88 S. C. 285.</p> <p>cite: Verdict may be sustained on the evidence other than that of the telephone conversation: 81 Ga. 297. But this conversation is admissible: 85 S. C. 36; 15 Ohio C. C. R. 686; 3 E. R. A. 539; 45 So. 74; 69 At. R. 411; 77 Mo. App-. 258; 78 111. App. 93; Jones on T. & T. Co©., sec. 697. Preceding, a statement in the charge by “if” is not a charge on the facts: 8$ S. C. 386.</p>

<p>New Trtai..—No appeal lies from am order granting a new trial except where this Court can render judgment -absolute. Here the record-does not warrant the Court in holding, that motion of nonsuit or to direct a verdict should have been granted1 in an- action involving title to land.</p>

<p>Before Prince, J., Barnwell, April term, 1911.</p> <p>Two actions: (1) J. F. Boyles et al against F. W. Wagener et al.; (2) J. F. Boylés et al. against Mamie Sanders. Plaintiffs appeal.</p> <p>cite: Construction must include whole instrument: 26 S. C. 464; 30 Ency. 663; 2 Black. 307. Trustees took legal title to protect property from sale for debts of beneficiaries: 1 Hill 413, 78 S. C. 149. Heirs of the body should be construed as purchasers: 2 McC. 62. Law will imply estate in trustee: 1 McC. 7, 79; 41 S. C. 212; 61 S. C. 162. Children of testator take an equitable estate: 39 S. C. 144.</p> <p>cite: Children take a fee conditional: 6 Rich. Eq. 467; 14 S. C. 610; 17 S. C. 550; 28 S. C. 240; .5 Rich. Eq. 441; 47 S. C. 288; 48 S. C. 440; 52 S. C. 244; 1 Rich. Eq. 404; 2 Strob. Ep. 190; 3 Rich. Eq. 384; 52 S. C. 554. Trustees had nothing to do and statute executes the use: 11 S. C. 75; 17 S. C. 550; 25 S. C. 512; 46 S. C. 552; 53 S. C. 6; 48 S. C. 440; 52 S. C. 556; 48 S. C. 441; 78 S. C. 134; 61 S. C. 151; 10 S. C. 376.</p> <p>for Mamie Sanders, cite: No duties being imposed on trustees, the statute executes the use: 52 S. C. 554; 11 S. C. 75. The beneficiaries take a fee conditional: 52 S. C. 554; 11 S. C. 75; 3 Rich. Eq. 404.</p>

Before DeVorE, J., Barnwell, July term, 1911. Action by C. E. R. Dupuy against H. A. Williams, on the following complaint: “The complaint of the above named plaintiff respectfully shows to the Court: 1. “That the above named plaintiff, C. E. R. Dupuy, is the owner in fee and entitled to possession of the following described tract of land, to wit: 'All that tract or parcel of land lying and being situate in the county of Barnwell, State of South Carolina, containing one…

Before Aldrich, J., Union, September term, 1910. Action by Charles N. Lawson, administrator of William Lawson, against Southern Railway Company, J. D. Brunson), J. B. Hall and O. J. Meyer. Plaintiff appeals. cite: The usual and customary way of doing things is not the test of due care: 74 S. C. 142; 61 S. C. 468; 60 S. C. 168; 25 S. C. 24. .Stating what facts constitute due care is a charge on the facts: 61 S. C. 563; 51 S. C. 460.

<p>Before Copes, J., Kershaw, March term, 1911.</p> <p>Action by J. N. Nicholson against K. S. Villepegue. Plaintiff appeals.</p> <p>cite: Possession by tenant: 3 McC. 422. ' Possession of part possession of whole: 1 McM. 444; 1 N. & M. 356. Allegation of ozvnership includes possession: 21 Fnicy. P. & P. 823-5, 722; 42 S. C. 144; 37 S. C. 575. Possession is prima facie evidence of title: S'. & W. on Trial Title to Rand, secs. 717-8; 28 Ency. 629; Tyler on Eject. 569; 10 Ency. 486-7; 1 McM. 444, 449; 17 S. C. 157; 2 Bay 133; 3 Buev. 101; 86 S. C. 3-58.</p> <p>Mr. Clarke cites: Plaintiff must show title in himself: 1 McM. 444; 59 S, C. 1.31; 71 S. C. 327.</p>

<p>1. Murder—Parent and Child—Charge.—In the trial of a murder case of a son for the killing of the father, the Court should designate the parties by their legal titles as defendant and deceased and not by the names of their family relations. Here the Court is not sure but that the charge impressed the jury with the idea that the son did not have the same right to defend himself against an assault by his father as from an assault by another person.</p> <p>2. Self-Defense—Opprobrious Language.—While the first statement by the Court in the charge as to the use of opprobrious language, which may have brought on a difficulty, is not strictly correct, there could no harm have come of it, as1 he immediately thereafter stated the correct rule, as such opprobrious language as may be expected to bring on and actually resulted in bringing on the difficulty. This rule is not limited to opprobrious language used to the defendant, but may include language used to one under his protection. The terms “difficulty” and “physical encounter” in the application of this rule mean the same.</p> <p>3. Ibid.—Ibid.—Issues.—Whether the opprobrious language should ordi- ‘ narily be expected to bring on a difficulty, is for the jury.</p> <p>I. A reasonable doubt is a strong, well-founded and substantial doubt arising in and growing out of the testimony in the case, and not a “painful anxiety.”</p> <p>.5. Malice prompts the wilful or intentional doing of a wrongful act without just cause or excuse. A heart may be full of sin and black and yet not a legally malicious heart.</p> <p>• 6. Ibid.—Charge.—The instruction as to how a jury should judge of a man’s heart, held tornean that they should judge of it by his language and conduct, by what they know of him from the evidence in the case and their own observations and experience of human passion and conduct.</p> <p>'7. Burden of Proof—Accidental Killing—Charge.—Taking this charge as a whole the jury may have concluded that the burden was upon defendant to show that his plea of accidental killing must be made out by the preponderance of the vidence, which is not the law.</p>

<p>1. Aujiosy—Bttrdex of Proof.—The allowance of temporary alimony and suit money are mere provisional remedies, and where the wife voluntarily leaves the home she must show prima facie that her husband inflicted on her such physical violence or personal indignity as would make her living with him intolerable. But that showing does not entitle her to this relief, if, on the whole showing, it appears prima facie that she has committed adultery, or violated or omitted to discharge any of the important hymeneal obligations.</p> <p>3. Ibid.—Ibid.—But where it is admitted or conclusively shown that the husband drove the wife from the home, the burden then falls on him to justify his refusal to support her.</p> <p>.3. Ibid.—Appeal.—'The conclusions are largely in the discretion of the trial Judge. His order is appealable, but will not be disturbed unless clearly opposed to the weight of the evidence.</p>

Before Wilson, J., Union, Majr term, 1911. City of Union against the Board of Commissioners of Public Works for the city of Union, on the following complaint : “The plaintiff above named, complaining of the above named defendants, alleges: 1. “That the plaintiff is, and was at the times hereinafter mentioned, a municipal corporation, duly chartered and existing under and by virtue of the laws of the State of South Carolina, with full power to sue and be sued in the Courts of…

<p>Liquors.—Uxder ax ixdictmext charging a defendant with keeping and maintaining a distillery, a place where alcoholic liquors were manufactured, the defendant may be convicted on proof that he is found at a still in the act of taking out the water, cleaning out the still and with a bundle of kindling under his arm, and the presence of a lot of beer for manufacture.</p> <p>Messrs. Justices Hydrick cmcl Fraser dissent.</p>

<p>Carrier—Freight—Presumptiok’s.-—It being- well nig-li impossible for the consignee of goods shipped over several connecting- carriers to ascertain on which they were damaged in transit, the -Courts have generally placed on the terminal carrier the burden of responding for injuries sustained in transit, unless it can be affirmatively shown they were damaged in the hands of another carrier. This presumption continues throughout the trial and should only be rebutted by evidence so clear and) conclusive that no reasonable man could fail to come to the conclusion that the damage had not been done by the terminal carrier.</p>

<p>1. Removal of Causes—Joist Touts.—Refusal to remove case into Federal Court on ground' of diverse citizenship and 'because the complaint does not allege a joint liability sustained, for the reason that the affidavits show the family of one of the defendants resides in this State, and his business is entirely within the State, and the failure of an inspector of telegraph poles to detect and remove a defective pole makes a joint tort between the inspector and the telegraph company for. an injury caused-to an employee by reason of the defective pole.</p> <p>3. Jurisdiction—Waiver.—Where two defendants, one a foreign corporation and the other an individual, resident of another county than the one in which the suit is brought, answer the complaint on the ■merits without reservation1, they waive the objection to the jurisdiction of the person.</p> <p>3. Assumption of Risks—-Issues.—-Where a telegraph company has two systems of pole inspection—one by a gang with full equipments to fully test—the other by rule requiring the employee to test before climbing—whether the lineman assumed the entire risk in climbing a pole apparently safe -after inspection is a question that depends on the rules1 and practices of the master and the circumstances of each case, and is usually for the jury.</p> <p>4. Telegraph -Companies—‘Lineman—Contributory Negligence.—In view of all the evidence in this case the 'Court cannot say -as matter of law that the lineman- was guilty of contributory negligence in climbing- a defective pole.</p>

Before DeVorE, J., Dillon, Fall' term, 1910. Action by John A. Hursey against Allen Surles and D. TI. Hyatt, executors of Archibald B. Surles. Defendants .appeal. Mr. Johnson cites: Contract to make a specific devise cannot be enforced on the law side of the Court: 48 S. C. 90; 22 S. C. 467. No contract shown: 3-8 S. C. 179; 34 S. C. 255. Services rendered may have been accepted as gratuitous: 67 S. C. 244; 35 S. C. 551; 37 S. C. 161; 53 S. C. 382; 80 S. C. 160.

<p>Wfix-ps—Limitation of Estates—Life Estate.—In a devise to my nephew S. “during his natural life * * * and at his decease to Ms surviving issue. But should my said nephew die without any surviving issue of his body, the said1 lands, herein bequeathed to his children, I allow to descend” to others specified, the words “surviving issue” are used in the sense of his surviving children, and at his death the lands. • descend to those children who survive him.</p>

Before Aldrich, J., Richland, May, 1911. Action by the Newberry Savings Bank against the Bank of Columbia. Defendant appeals. cites: Bank’s duty to know signature of its depositors: 10 Wheat. 344; 7 L. R. A. 851; 55 S. E. 298; 83 Am. St. R. 288; 41 R. R. A. 586. Effect of restricted endorsement: 41 R. R. A. 586; 83 Am. St. R. 288; 6S ET. S. 166; 1 Dan. Neg. Inst. 553-3; 2 Moss, on Bks. 1000; 1 Moiss., sec. 217; 63 R. R. A. 252; 7 R. R. A. 858.

Before DeVore;, J., Barnwell, July,. 1911. Action by Sarah Porter et al. against Leila A. Lancaster .cl al. Plaintiffs appeal.

Before AVatts, J., Greenwood, April .term, 1911. Action by The Lowry National Bank of Atlanta against E. Z. Seymour. Defendant appeals. cite: Presumption of transfer for value without notice arises upon proof of possession and indorsement: 28 S. C. 538.

Before Ardrici-i, J., Union, Fall term, 1910. Action 'by B. -F. Arthur, Wm. H. Gist and FI. B. O’S'brelds, as' receivers of the Peoples Bank, against J. A. Brown. Plaintiffs appeal. cite: The letter C11 below signature does not affect note: 36 S. C. 553; 28 S. C. 469; 8 Rich, 346; 44 S-. C. 15. Parol evidence as to agreement behveen defendant and president of bank is not admissible: 2 B'ail. 342; 1 MeC. Gban. 490; 1 Hill 32; 2 Bail. 107; 4 Ridh. 507; 5 Rich. 305; 3 S-.

Before Shipp, J., Marion, May,' 1911. Action by Emma B. Murchison against Atlantic Coast Nine Railway Compairy, in the matter of I. I. Fass, Jr., .against same defendant. Plaintiff appeals. Mr. Moore ■cites: Defendant zvaived its right to have complaint filed .or to have same dismissed: 2 Rich. 10; 31 S. C. 342; 33 ■S. C. 164; 49 S. C. 563; 55 S. C. 450. cites: Judge Dantsler’s order is a final order: 31 S. C. 432; 2 Bail. 606; 2 Rich. 10.

<p>Before DrVorr, J., Sumter, March, 1911.</p> <p>Action by H. B. Tuller against C. L. McLeod. Plaintiff appeals.</p> <p>cites: As to construction of conditions: 89 S. C. 81; 7 Cyc. 10-1; 85 S. C. 196. Attorney’s fees, loss of time, expenses, etc., should not be considered in azvarding actual damages: 39 S. C. 465; 31 S. C. 49; 12 Rich. 292; 3 Strob. 373; 40 S. C. 528; 51 S. €. 484; 65 S. C. 506.</p> <p>cite: As to construction of condition as to removal: 4 Cyc. 437; 43 S. C. 203; 74 S. •C. 453. Answer sets out special damages: 65 S. C. 506 ; 31 S. C. 52. Nominal damages may be recovered without proof of actual: 34 Cyc. 1560,</p>

<p>Before Gage, J., Abbeville, October term, 1911.</p> <p>Action by Sallie R. and J. T. Lawton against Charleston & Western Carolina Railway Company. Defendant ■appeals.</p> <p>Mr. Greene cites: Release cannot be set aside on ground of mistake: 2 Pom. Eq. Jur. 855; 74 Am. St. R. 881; 52 N. W. 136; 16 So. 347; 31 S. W. 903; 66 Pac. 1020; 54 So. 281. Nor on account of representations by railroad surgeon: 92 S. W. 455; Thomp. on Corp. 6324: 44 S. W. 278.</p> <p>cite: Release should be set aside because executed under gross misapprehension: 15 S. W. 700; 47 S. W. 379; 69 S. W. 651; 73 S. W. 1083; 81 S. W. 1190; 93 S. W. 124; 66 S. C. 77; 61 S. C. 537; 108 111. App. 357; 30 N. E. 176; 86 N. C. 473; 1 S. C. 431;</p>

Before DeVorE, J., Sumter, April, 1911. Action by H. D. McKnight against W. J. Dyson and C. D. Dyson in court of Magistrate Horace Harley. From Circuit order plaintiff appeals. cites: Witness only called and sworn is not subject to cross-examination: 58 S. C. 75; 43 Ala. 406; 14 Ark. 555. If there be error in refusing cross-examination it is cured by party calling witness as his own: 61 S. C. 292. Oral argument.

<p>1. Principal and Agent—Evidence.—Where a telegraph company undertakes to transmit a message to one of its offices and there mail to the addressee, it does its duty by doing so in a reasonable time. Negligence in delivery by the postal authorities cannot be imputed to the telegraph company, as they were the agents selected by the sender to make final delivery, and the admission of the postal authorities as to the receipt of the message is binding on the sendee.</p> <p>2. Telegraph Companies—Pleadings.—Under a general denial the telegraph company may show it was instructed to mail the message, the indication appearing on the face of the message in possession of plaintiff that the sendee lived in the country.</p>

Before Gage, J., Spartanburg. Indictment against Cleveland Seay for seduction under promise of marriage.

<p>Appeal.—Time for perfecting appeal extended on terms, because appellant was too busy with his public duties to complete it in time.</p>

<p>Before Ernest Gary, J., Spartanburg, November. 1911.</p> <p>Action by S. M. Wetmore, receiver, against M. H. Sherman, In,re J. IT. Parris v. Carolina Mutual Fire Insurance Company. Defendant Sherman appeals.</p> <p>cite: Acts relating to remedy do not impair obligations: 8 Cyc. 1006; 54 Me. 345; 47 N. Y. 157; 83 111. 491; 1 Col. 100; 43 Ala. 434; 59 Ind. 446; 1 Neb. 419; 4 Minn. 546; 31 Conn. 63; 39 N. H. 304; 33 Mass: 561; 56 Tenn. 841; 1 Dougl. 373; 63 N. C. 554; 39 Ore. 563; 41 Miss. 71; 64 N. Y. 363; 1 Ohio N. P. 350; 3 Ohio Dec. 15; 83 N. C. 391; 6 Neb. 33; 33 Ga. 183; 43 N. J. D. 571; 79 111. 409; 9 Wis. 559; 1 N. & McC. 486; 8 Cyc. 986; 3 Wend. 588; 3 Mete. 165; 113 U. S. 574; 97 111. 593.</p> <p>cites: Statute not retroactive: 36 Cyc. 1305; 55 S. C. 303; 34 S. C. 468; 9 S. C. 388; 13 Rich. 377; 13 Wall. 646; 97 U. S. 393; 19 Wall. 107. Company not doing business: 187 U. S. 304; 61 S. W. 75; 33 La. 10; 71 Ala. 60; 4 Col. 369; 40 N. E. 463; S3 Fed. 403; 35 L. R. A. 543.</p>

Before DeVore, J-, Darlington, January, 1910. Action by A. H. Windham el al. ag'ainst George C. Howell et al. Plaintiffs appeal. .Mr. Shand cites: Allegation of sole ozvnership in one tenant ■amounts to ouster of others: Freem. on Co. & P., secs. 235, 230, 238; Cowp. 217.

<p>Motions in this Court to reinstate the appeals in E. A. Lowry against Atlantic Coast Line Railroad Company;' Henry R. Geddings against Same; and Shelly Lowrence against Same.</p>

<p>Carrier—Freight—Penalty—Consignee.—Under the penalty statute for failure to adjust claims for loss or damage to freight, the party to be notified in a shipment to the order of the consignor “notify" after he has obtained possession- of the bill of lading is included in the term “aggrieved consignee” used in the act and may recover the penalty. A penalty statute should be strictly but not unreasonably construed.</p>

Before Wieson, J., Richland, November, 1911. Action' by C. E. Meetze against Southern Express Company in court of Magistrate J. H. Fowles. From Circuit •order, affirming magistrate’s judgment, defendant appeals. cite: The evidence as to negligence Joeing in writing this issue is reviewable here: 70 S. C. 178, 554; 87 S. C. 267; 86 S. C. 510; 81 S. C. 4-61. Refusal ■of magistrate to grant continuance is abuse of discretion: 39 S. C. 339; 29 S. C. 87; 82 S. C. 236.

<p>1. Exceptions alleging error in reversing- referee and in not confirming -his report and dismissing the claim in question are too general.</p> <p>2. CoLLATERAI, ATTACK.-—Tl-IE TRANSCRIPT OP A JUDGMENT IN A MAGISTRATE court required- by section 87 of the Code of Procedure to be filed in the Circuit Court to make it a judgment of that Court need not show the jurisdictional facts—that a summons was served, answer or demurrer -made and trial had—and such judgment is not subject to collateral attack.</p> <p>Barron v. Bent, 17 S. C. 75, and1 Benson v. Benson, 28-S, C. 119, distinguished from this case.</p>

<p>■Before Watts, J., Spartanburg, June, 1911.</p> <p>Action by Mary Humphries against Nellie G. Settlemeyer and S. L. Settlemeyer. Defendants appeal.</p> <p>cite: 36 Cyc. 1110-11, 1145, 1175-80, 1114; 4 McC. 64.</p> <p>cite: 1 Jar. on Wills 10, 11; 28 S. C. 551; Story Con. L-, sec. 474; 24 L. Ed., U. S. 192; 16-Cyc, 616. . ■</p>

Four actions for injunction in the original jurisdiction of this Court: (1) The State of South Carolina, Bx rel. J. Fraser Lyon as Attorney General, against C. A. Verdier, J. R. Cooler and W. W. Hudson; (2) Same against A. J. Alexander and W. H. Stalworth; (3) Same against C. E. Boineau, J. W. Campbell and B. Josselson; (4) Same against C. A. Walker, R. A. Coburn and S. S. Kellars.

Before Ernest Gary, J., Charleston, April, 1911. Action by Atlantic Paint Company against M. F. O’Rouke in court of Magistrate Watson C'. Finger. The judgment in magistrate court was transcripted to Circuit Court, in which the motion was made from the order refusing which the defendant. appeals. The printed “Case,” argument and opinion have tire names of the parties, reversed —and the.

<p>Before Shipp, J., Clarendon.</p> <p>Action by Alexander Tindal et al. against Willie A. Bichbonrg et al. Defendant J. H. Rigby appeals.</p> <p>cite: 16 S. C. 227, 290; 20 S. C. 318; 21 S. C. 529; 12'S. C. 172; 15 S. C. 432; 16 S. C. 220; 17 S. C. 53; 23 S. C. 225; 26 S. C. 462.</p> <p>cites: 16 S. C. 228; 24 S. C. 314; 1 McC. 7; 2 McC. 256, 411; 1 Hill Ch. 311; 15 Strob. Eq. 283; 4 Strob. Eq. 15; 4 Rich. Eq. 346; 5 Rich. Eq. 30; 7 Rich. Eq. 125; 9 Rich. Eq. 470; 19 S. C. 350; 25 S. C. 361, 292; 24 S. C. 314; 23 S. C. 224; 2 Strob. Eq. .51; Rich. Eq. 464.</p>

<p>Contempt—Alimony.—Refusal to obey an order requiring a defendant husband to p&y temporary alimony and suit money is a civil contempt and stands or falls with the order requiring the payment. Where there is an appeal from an order adjudging temporary alimony, but none from an order adjudging defendant in contempt for not paying, the contempt order should be stayed pending the appeal upon appellant entering into bond.</p>

<p>1. Municipal Registration.—Opening books of registration, for a town twenty-five days -before a municipal election instead of twenty days before, as provided by section 195 of Code of 1902, as -amended by 26 Stats., 1026, does not invalidate tbe election in absence of evidence that thereby a number of electors sufficient to change the result was deprived' of the right to vote.</p> <p>■2. Constitutional Law—Municipal Bonds—Sewerage—Waterworks— Lights.—The amendment to the Constitution in 1910, enacted 27 Stats., 13, to the effect that the eight per cent, limitation- of municipal bonded indebtedness incurred for sewerage, waterworks, etc., provided- in section 7 of article VIII of the Constitution, should be repealed, necessarily amends section 5 of article X, and the proviso thereto relating to the limitation of the bonded indebtedness of several political divisions, and' the amendment as submitted is not violative of section 2 of article XVI, providing that each proposed amendment should be submitted separately, as- the amendment embraced only one subject and- includes both provisions.</p>

<p>1. Pleadings—Special Damages—Motions to Strike Otjt—To Make Definite.—An allegation that defendant knew all the facts' and circumstances out of which the alleged special damages arose is held by reasonable intendment from the complaint to mean that defendant knew these facts- at the time of making- the contract. ‘The remedy against such allegation is motion to make definite and not to strike out. It is not necessary to allege that defendant contracted with reference to such damages, but it is sufficient to allege knowledge of the special facts and circumstances at the time of contracting.</p> <p>2. Ibid.—Motions to Strike Out.-—A second motion to strike out allegations in a complaint comes too late if not noticed before answering or demurring, and within twenty days from service of pleading and when not embraced in the first motion.</p> <p>3. Ibid.—Ibid.—Evidence—Jurisdiction.—Refusal of one Circuit Judge to strike out irrelevant or redundant allegations does not deprive a succeeding Circuit Judge of jurisdiction to rule out evidence in support of such allegations as he is in a better position to judge of the relevancy of the evidence on the trial of the case, and because the motion refusing is not appealable.</p> <p>4. Ibid.—Motions to make complaints moke definite and certain by requiring the plaintiff to set out practically all the evidence upon which he relies to prove his case should be refused.</p> <p>5. Issues.—To an action for damages for breach of contract the provisions of section 293 of the Code of Procedure, authorizing the Court to order a reference “when the trial of the issues of fact shall require the examination of a long account on either side” does not apply, as in such case either party has the right to demand trial by jury.</p> <p>6. Contracts—Fraud.—Punitive damages are not recoverable for the wilful and wanton violation of a contract in absence of an intent to defraud the other, party to the contract.</p> <p>,7. Punitive, Remote and Speculative Damages—Charge.—After the admission of evidence generally as to punitive damages, an instruction that there is no evidence upon which punitive damages could be recover'd and that evidence as to remote and speculative damages, had been admitted which were based on punitive damages, whicli must fall with punitive damages, without definite instructions as to what damages could be included in the verdict, is error.</p> <p>8. W'HAT DAMAGES ARE RECOVERABLE IN OASES OF BREACH OF CONTRACT is stated in Martin v. By., 70 S. C. 8; Standard Supply Go. v. Garter § Harris, 81 S. C. 181; McMeekm v: By., 82 S. C. 468.</p> <p>9. Damages.—A party breaching a contract to supply electric power is not liable for expenses incurred after expiration of contract by the other party in providing machinery suitable to‘ use the power furnished by another manufacturer in place of that by which the power furnished by the breaching contractor was used, there being no renewal provision in the breached contract.</p>

Before Wirson, J., Richland, December, 1911. Action by Malvina S. Waring against R. T. Jennings in court of Magistrate Fowles. From Circuit order affirming judgment of magistrate, defendant appeals. cite: Evidence as to defendant saving himself rent of another house if plaintiff had notified him of her claim should have been admitted: 41 S. C. 134; 66 S. C. 61. As to agency: 48 S. C. 430; 49 S. C. 345; 76 S. C. 529; 79 S. C. 578.

Before Wieson, J., Marlboro, March, 1912. Indictment against John Malloy.

<p>Before Wieson, J., March, 1912.</p> <p>Indictment against Sidney Turnage. Defendant appeals.</p>

<p>■Before Shipp, J., Marion', May, 1911.</p> <p>Action by S. U. Davis-, Jota W. Davis and. D. K. Godbold against J. K. Reynold®. Botlh parties appeal.</p> <p>cites-: As to measure of damages: 83 S. C. 56'6; 70' S. C. 108; Code otf Proc. 200; Code 1902, 2450; 17 S. C. 73; 13 S. C. 19; 18 S. C. 183; 72 S. C. 464; 15 S. C. 30; 12 S. C. 45, 580; 28 Ency. 679, 685, 696; 1 Add. on Torts, secs-. 522, 484, 470. As to punitive damages: 70 S. C. 108; 77 S. C. 192.</p> <p>Mr. Livingston cites: Trees were dead, and consequently, personal property: Green. Ev., sec. 271; 11 Rich. 624; 12 Rich. 314; 28 Ency. 541-2. Neither defendant nor his grantees could prevent plaintiff from entering and removing trees: 18 Ency. 1132; 3 Kent. 452; Add. on Torts, secs, 116, 130; 18 S. C. 17; 31 S, C. 275. Allegations necessary to recover punitive damages: 78 'S. C. 73; 70 S. C. 108; 35 S. C. 475.</p> <p>The opinion' ini this case was filed on May 7, tot remittitur held1 up oiu petition for rehearing- until</p>

<p>Before Watts, J., Spartanburg, July, 1911.</p> <p>Action by Alfred Teague against Western) Union Telegraph Company. Defendant appeals.</p> <p>Messrs. Nelson, Nelson & Gettys cite: The office hours were reasonable: 71 S. C. 303; 70 S. C.,258; 90 S-. C. 132; 37 Cyc. 1744, note 00. There was no evidence of waiver: 71 S'. C. 386; 73 S. C. 522. Delay in delivery was not the proximate cause of any damage to plaintiff: 90 S. C. 133.</p>

Before De;Vore;, J., Marion, April, 1912. Claim of D. J. Martin, as supervisor of Marion county, for salary.

<p>Petition in tiie original jurisdiction of this State by George C. McKerall for injunction against tibe Road- and Plighway Commission of Marion county.</p>

Before Gary, J., Cherokee, November, 1911. Action by C. H. Reynolds against Eum Deaton in court' of Magistrate Wm. Phillips. From Circuit order granting new trial, plaintiff appeals. cite: Statutory mode of arbitration is cumulative to common law mode: 3 Cyc. 586, 800; 58 S. C. 399; 78 S- C. 313; 63 S. C. 106; 70 S. C. 549'; 36 S. C. 80; 78 S. C. 303. cite: Form of requirements of arbitration: 30 S. C. 518; 3 Cyc. 604, 635, 698; 3 Ency. 733; 1 McM. 303.

Before SeasE, J., Marion, Fall term, 1910. Action by Citizens Trust and Savings Bank, against J. Stackhouse & Son et al. Defendants appeal. This case was first argued on 38th April, 1911, but was ordered reargued on April 33, 1913. cites-: What defendant must show to let in defense of failure of consideration against indorsee of negotiable note: 8 S. C. 470; 14 S. C. 143; 38 S. C. 148; 81 S. C. 541; 87 S. C. 76.

<p>1. Real Estate—Adverse Possession—-Limitation op Actions—Title.— One in possession of land before the Code of 1870 could acquire title by adverse possession in ten years.</p> <p>2. Ibid.—Ibid.—-Ibid.—The disability of lunacy does not stop the running of the statute in favor of one going in possession of, land under claim of title while compos mentis. The possession of another under such lunatic would enure to his benefit.</p> <p>3. Ibid.—Ibid.—Tithe.—One in possession of land under claim of title cannot be put to proof of bis title by one who invades his possession as a trespasser or squatter.</p> <p>Mu. Justice Woods, with whom, concurs Mu. Justice Watts, thinks it inferable from the evidence that the possession of the deceased in this ease was adverse to that of the trustee after conveyance by him in breach of the trust, and that by such possession he acquired a good title.</p> <p>4. R.EHEAMXG refused.</p>

Before Shipp, J., Darlington, Spring term, 1911. Action by Hickson Dumber Company against Sylvester Stallings.

Before Copes, J., Sumter, November, 1911. Action by Henry R. Geddings against Atlantic Coast Line- Railroad Company, C. E. Henry and Alger Hawkins.

<p>Before Prince,- J., Barnwell, April, 1911.</p> <p>Action by Olivia Holley et al. against W. T. Still, trustee, et al. The important part of the Circuit decree is:</p> <p>“This action came on to be heard before me at Barnwell, at the Spring term of the -Court upon the pleadings and proceedings, the case by a consent order had been referred to the master, Mr. O’Bannon, not only to take the testimony, but to report his conclusions on the law and facts, and with leave to report any special matter. The testimony oral and documentary is most voluminous, and has been read to me and most carefully considered. The-able report of the master containing his conclusion of law and facts, as well as the able arguments of counsel on both sides, have also been considered. I do not deem it necessary in stating my conclusion to go into all of the questions of law and facts as fully as'the master has, but I have considered all of the questions most carefully. I agree fully with the master as to his conclusions, that inasmuch as it is admitted by all parties that the will of John Holley, the elder (which has been construed by the Supreme Court in the case of Simms v. Buist, 52 S. C. 554), gave to Eugenia Holley, afterward Eugenia Rountree, a fee conditional at common law in the tract of land in question, and although she had issue born of her body, yet inasmuch as she made no alienation during the lifetime of said issue, but only after the death of said issue executed the trust deed of 3 905 in question, that she had no power to make said trust deed so as to bar the reverter of the estate to the heirs at law of John Holley, who are the claimants in the action.</p> <p>“But I do not agree with the master that the words of Chancellor Dargan, in Barksdale v. Gammage, 3 Rich. Equity 279, are to be regarded simply as obita dicta. To the contrary, I think the Chancellor intended to decide and. did decide that case upon the idea that after the birth of issue, and after the death thereof, the tenants in fee conditional could make an alienation which would ' bar a reverter, but I am firmly of the impression that the Chancellor was mislead in construing the quotations which lie made from Blackstone. I conceive the law to be, that upon the birth of issue, the condition is not gone only to the extent of alienation during the life of issue, but if the issue dies before the alienation, the disability returns, and any alienation is void and cannot prevent the reverter. If it were otherwise upon the birth of issue simply the tenant would have the power to devise the property, and our Courts have held frequently that no such power obtains.</p> <p>“This conclusion of law within itself disposes of this important case, because the trust deed made by Eugenia A. Roundtree in 1905, to W. T. Still, trustee, was effective only to pass the title to the land in question during the lifetime of the said Eugenia A. Rountree and consequently the subsequent deeds, papers, mortgages and consents made pursuant to said trust deed are null and void as against the heirs of John Holley, the testator, and the claimants in this action are the legal owners of the real estate in question, and are entitled to partition of same among themselves, or a sale and division of the proceeds.</p> <p>1 “Inasmuch, however, as it is an important case, and has been fully considered by the master, I have considered the entire case, and will now state my conclusions concerning the same. I confirm the conclusion of the master on this part of the case, and with him agree that the trust deed of 1905, and all subsequent deeds, and mortgages and consents, should be set aside in equity as null and void. I do not go to the extent of finding that Eugenia Rountree was out and out an idiot, or imbecile, but I do find and am firmly convinced that what Dr. Kirkland, her physician, testified to is the truth; that at the time she executed the trust deed in question, and long previously thereto and ever afterwards, she was extremely weak-minded, decrepit, and that in consideration of her state of mind, the border line between her weak-mindedness and her imbicility and idiocy was but a shadow.</p> <p>“Regarding her in such condition of mind, on the 30th day of September, 1905, she was induced by her husband, John B. Rountree, who was a strong-minded man, and her stepson, W. T. Still, and her other stepchildren to execute the trust deed in question, which transferred from her control the valuable property in question, which was worth as the testimony shows from twelve to fifteen thousand ($13,000 to $15,000) dollars, reserving only in herself the right to rents and profits during her lifetime and giving to trustee the power to mortgage the property or sell and convey the same in such parcels as he saw fit upon her written consent. The law on this subject is properly stated by the master, and the relations of these parties to her, that is to say, her husband and her stepson, who had accepted the position as trustee, were such as to raise the presumption that constructive fraud was committed and undue influence was used to bring about this deed for the purpose of transferring the property from her control to the control of Rountree and his children, and to practically deprive her of the same. The law then placed the burden upon the parties interested to show that there was no such constructive fraud, or undue influence, and I find that the evidence surrounding this transaction does not remove the presumption; these parties were bound under the law to show that it was not an honest and just transaction, and this they have failed to show and satisfy me.</p> <p>“To the contrary, whilst the subsequent transaction between the parties would not effect the legality of the trust deed, yet such conduct will throw light -upon the intention of the parties at the time they had Mrs. Rountree to make the transfer. The subsequent transaction certainly established that when there was no necessity to divide up her property during her lifetime, to pay the Hill mortgage which could have been paid by mortgage upon a small portion of the valuable property, yet, the trustee and the others acting with him obtained her consent and made deeds dividing up this valuable property into tracts in order that they could own same, the trustee’s wife getting by the division more than she was entitled to by the deed.</p> <p>“Further than this, when they could not borrow the money on the property without wiping out her right of support, they influenced her to sign her consent giving away her right of support on the border of the grave.</p> <p>“All of these transactions reflect back upon the intention of the parties, who unduly influenced her when she signed the trust deed in 1905, and strengthens rather than weakens the presumption that the transaction was a constructive fraud and brought about by undue influence.</p> <p>2 “The other question involved as to the agency of J. O. Patterson & Son, of the mortgage company in question is very clear. I concur with the master that they were such agents; they were not only agents of the mortgage company, but they were agents of the mortgagors. There is no necessity to quote authority on that subject, as the authority quoted by him is sufficient. I also agree with the master in his finding of fact, that as such agents they had knowledge or notice of such facts, which if they had used ordinary diligence would have lead them up to the knowledge that this lady, at the time she executed the trust deed was a person of very weak mind, and that said deed was intended to transfer her property to the dominion and control of John B. Rountree and his children. This is not imputing any fraud to Messrs. Patterson & Son, but simply imputing to them knowledge of the existence of facts which when known to them ought to have kept them from allowing the mortgage company to loan money upon that property. This being the case the knowledge to them was knowledge to their clients, the mortgage company, and they having such knowledge or facts sufficient to lead up to their knowledge, they have failed to establish their plea of purchaser for valuable consideration without notice.</p> <p>“In so far as the defendants, the Easterlings, are concerned, they came into the case as purchasers from Frank Rountree and Mrs. Smith after' the lis pendens were filed, and of course, with full notice of all the rights of 3 claimants in the case and their deed under the findings as aforesaid is null and void to say nothing of the fact that the prices which they paid of one hundred ($100.00) dollars each, to Mrs. Smith and Frank Rountree is a clear indication that they knew that there was invalidity in the title.* * *”</p> <p>From the Circuit decree thexdefendants, yi. T. Still, trustee, Rina Still, Geo. W. Easterling, B. C. Easterling and the British & American Mortgage Co., Limited, appeal.</p> <p>cite: Conveyance by fee conditional tenant after birth and death of issue does not bar reversion: 3 Rich. Eq. 279; 10 Venir Abridg. 268; 3 Bacon Abridg. 428; I Greenleaf’s Crime Real P. No. 68; 1 Thomas Code 508; 5 Wall. 284; 74 111. 286; 2 Gr. Cr. R. P. No. 27; 40 Vx. 382; 77 Eng. R. 464; 4 Kent Nos. 11, 17; 17 S. C. 551; 7 Wall. 295; 1 Shars. L. Cas. 93; 65 S. C. 354; 77 S. C. 231; 1 Hill Ch. 27; 48 S. C. 440. Undue influence: 90 S. C. 196; 89 S. C. 272; 85 S. C. 329; 35 N. J. Eq. 303; 82 N. E. 881; 38 S. C. 215; 64 S. C. 256; 29 Ency. 105; 16 S. C. 344; 127 111. 382. Relationship of the parties: 44 N. E. 9; 50 N. E. 389; Wig. on Ev., secs. 2487, 2503. Burden of proof: 4 Strob. 238; 44 S. C. 378; 16 S. C. 334; 5 Rich. Eq. 458; 14 Vis. 273; 109 N. W. 623; 57 S. C. 283; 103 N. W. 225; 32 S. C. 171; 20 S. C. 232; 52 S. C. 132, 472; 46 N. Y. Supp. 321; 2 Ene. Ev. 810; 26 S. C. 61; 52 N. Y. 374; 57 N. E. 178; 39 N. J. Eq. 187; 10 Eed. Cas. 5357; 3 Pom. Eq. Jur., note 3, sec. 948; 33 Mich. 380. Transactions between persons of weak mind and others will be closely scrutinised: 37 Ency. 456; 30 S. C. 456; 94 U. S. 506; 57 S. C. 413; 34 S. C. 1; 3 Sp. 368; 3 Strob. 553; 1 Rich. 80; 16 S. C. 344; 38 S. C- 215. Agency of J. O. Patterson & Son: 49 S. C. 346; 44 S. C. 478; 37 S. C. 8; 65 S. C. 537.</p> <p>cite: Title reverted on death of fee conditional tenant, her issue having died before: 65 S. C. 353; 77 S. C. 331; Wash. R. P. No. 67; Tideman R. P., sec. 37; Bacon’s Abridg. 539; Cruise’s Digest 83; 1 Coke. Thomas 510; Spence’s Eq. Jur. 141; 7 S. C. 1.44. Was trust deed obtained by, fraud? 94 U. S. 508; 57 S. C. 438; 30 S. C. 474; 87 S. C. 1; 83 S. C. 199; 61 S. C. 501; 85 S. C. 339; 89 S. C. 573; 4 Des. Eq. 684; 3 W. & T. Dead. Cas. in Eq. 1173. Mortgage company had notice through Patterson & Son: 83 S. C. 536; 14 S. C. 313; 34 S. C. 568; 48 S. C. 135; 31 Ency. 584-5; 148 U. S. 439. Plea of purchaser for value cannot prevail against the legal rights of claimants: 41 S. C. 304.</p>

Before Prince, J., Hampton, March, '1911. Action by D. F. Moore against Herbert A. Beard et al. The defenses stricken out, from which order the defendant, Beard, appeals, are: “For a second defense: “This defendant alleges that for a complete determination of his rights and interests under and by virtue of the transactions referred to in the complaint, J. W. Rags-dale, J. E. Ragsdale, Bertha V. Barnes and Willie C. Blackburn are necessary parties to this action, as they own…

Before Gary, J., Union, September term, 1911. Action by Deaver-Jeter Company against Southern Railway. Plaintiff appeals. Mr. Hamblin cites: There was evidence to show the goods were lost in possession of defendant: 7G S. C. 311; 66 S. C. 478. The stipulation as to time for filing claims for damages may be waived: 85 S. C. 35; 70 S. C. 22, 395; 78 S. C. 397; 81 S. C. 473; 84 S. C. 351. This stipulation does not apply here: 5 Ency. 334-5; 80 Tex. 603; 87 Ga. 734; 55 Am. & Eng.

Before Watts, J., York, November term, 1911. Action by Lida E. Drennan, administratrix of Leonard B. Drennan, against Southern Railway—Carolina Division—and Southern Railway Company.

Before D^Vore, J., Hampton, Summer term, 1911. Action by Pollie V. Long and Mary Lemaire against C. H. Cummings and C. W. Cummings. Defendants appeal. Messrs, de Loach and Kirkland cite: Jtirisdictional facts need not appear on transcript from magistrate court: 28 S. C. 119; 17 S. C. 75. Statute ran against the executor, the trustee of the heir: 78 S. C. 143.

<p>Before SbasE, J., Florence, November term, 1910.</p> <p>Action by James McCown against Charles W. Muldrow. Defendant appeals on the following exceptions:</p> <p>I. “His Honor erred in allowing the witness, James Baskins, to give his opinion, over the objection of the defendant, concerning the speed of defendant’s car at the time of the accident; the error being: (a) That defendant’s car was not, at the time of the accident, under the immediate observation of witness.; (b) That the facts within the knowledge of witness were not sufficient to furnish an adequate basis for such opinion.</p> <p>II. “His Honor erred in admitting, over defendant’s objection, and in refusing to strike out upon motion of defendant, the testimony of the witness, John Hollis, that he would judge from the way defendant started off that his automobile was running at a speed of not less than eighteen or twenty miles an hour at the time of the accident; the error being: (a) That witness did not observe the speed of the automobile at the time of the accident, and based his opinion wholly upon the manner in which it started off; (b) That witness did not have adequate facilities for observation as to the speed of the automobile at the time of the accident; (c) That witness should only have been allowed to testify as to facts within his observation, and should not have been allowed to state the conclusions or inferences which he drew from such facts.</p> <p>III. “His Honor erred in refusing to grant the motion made by defendant upon cross-examination of the witness, John Hollis, to strike out the testimony given by witness as to speed at which defendant was running his automobile when the accident occurred; the error being: (a) That witness, by his own admission, did not have sufficient knowledge of the speed of automobiles on which to base his opinion; (b) That his Honor’s ruling disregards the rule of law governing the admission of opinion evidence, which requires that witness should state facts upon which he bases his opinion, and must be shown to have had adequate facilities for observation.</p> <p>IV. “His Honor erred in refusing to allow the defendant to ask the witness, W. H. Malloy, upon cross-examination, whether he had any report of defendant’s having violated the city ordinances on the day of the accident; the error being: (a) That the city ordinances were introduced, in evidence for the purpose of showing that defendant was driving his automobile at an unlawful rate of speed at the time of the accident; and the fact that a charge of violation of the city ordinances in this respect had or had not been made against defendant on the day in question would be some evidence to show whether he was guilty of such violation; (b) The circumstances in this case were such as properly to lead to the inference that a charge of violating the city ordinances in respect to exceeding the speed limit would have been made against defendant had such violation actually existed.</p> <p>V. “His Honor erred in refusing to allow in evidence the following testimony of the witness, J. W. Ragsdale: Tn my opinion, based on the experience I have had as an automobile driver, and observing other cars driven, it was a physical impossibility for me or Mr. Beard or anybody else in my caito have had any accurate idea of the rate of speed that a car would make going in our direction.’ It is respectfully submitted that this testimony was competent and relevant,, and that his Honor’s ruling was erroneous, in that: (a) It was competent for witness to express his opinion as to the possibility for anyone in his car to have had an accurate idea of the speed of the approaching car, said witness having previously stated the facts upon which said opinion was based; (b) Witness had'qualified as an expert; and it was competent for him to give his opinion whether an occupant of his automobile could accurately judge the speed of an approaching car, as the facts, upon which such opinion was based, were within his personal knowledge; (c) Said testimony was relevant for the purpose of impeaching the testimony of the witness, Joe Beard, by showing that he did not have adequate facilities for observation of the speed of defendant’s car at the time of the accident.</p> <p>VI. “His Honor erred in refusing to allow the defendant to answer the following question: ‘Would you or not have run at a high, reckless or dangerous rate of 'speed with those young ladies on your car?’ It is respectfully submitted that his Honor’s ruling was in error, in that: (a) Wilfulness and wantonness of defendant is one of the material issues in this case; and it was competent for defendant to testify whether or not he consciously and intentionally ran his automobile at such reckless and dangerous rate of speed that accidents would be likely to result; (b) The operation of the automobile at a high, reckless and dangerous rate of speed would endanger its occupants; and it was competent for defendant to state whether or not he would have acted with reckless disregard of their safety.</p> <p>VII. “His Honor erred in refusing to allow the witness, Leslie McLaurin, to answer the following question: ‘Prom your own knowledge of the conditions that existed there, what was the cause of that accident?’ the error being: (a) That it was competent for witness to express his opinion, as he was present when the accident occurred, and the facts relating to the accident were under his immediate observation; (b) That witness had stated sufficient facts upon which to base his opinion as to the cause of the accident.</p> <p>VIII. “His Honor erred in refusing to allow the witness, Leslie McLaurin, to answer the question asked him upon direct examination whether it would have been possible, with ordinary care on the part of an automobile driver going ten miles an hour, to have stopped his car or have avoided the accident at the-time Mr. McCown stepped in front of defendant’s car, the error being: (a) That it was competent for witness to give his opinion as an expert in answer to said question, as the facts, upon which the question was based, were within his personal knowledge; (b) That said question was relevant for the purpose of showing whether or not defendant could have avoided the accident by the exercise of reasonable care and skill.</p> <p>IX. “His Honor, the presiding Judge, erred in refusing to grant the motion made by defendant at the close of plaintiff’s testimony, that a verdict should be directed in his favor, whereas it is respectfully submitted that his Honor should have granted the said motion upon the grounds and for the reasons stated therein, to wit: ‘That the testimony shows that the plaintiff, James McCown, according to his own testimony, stepped off the sidewalk and stepped immediately in front of a moving car without making any effort to ascertain if there were any vehicles or any animals of of any kind approaching in his direction; and that, according to his own statement, he made no effort to ascertain that he was stepping into a place of danger, and that if he had used ordinary care and looked, he would have seen the danger and would not have stepped in front of the car; and that by his failure to use due care and caution he contributed to the accident by his own carelessness.</p> <p>X. “His Honor erred in charging the first request submitted by the plaintiff, to wit: ‘The violation of a city ordinance is negligence as a matter of law.’</p> <p>“It is respectfully submitted that this instruction is in error, in that: (a) It disregards the rule of law that the violation of the ordinance must result in injuries to another, in order to constitute negligence as a matter of law on the part of the person guilty of such violation; (b) There must be a casual relation between the violation of the ordinance and the injury to render defendant liable, and such violation must be the' proximate cause of the injury, and in this respect it must appear that compliance with the ordinance would have prevented injury; (c) This instruction was calculated to create the impression upon the jury that if defendant violated a city ordinance, such violation would be conclusive of his negligence towards the plaintiff, whether or not the accident would have been avoided by compliance with the ordinance.</p> <p>XI. “His Honor erred in not charging the second request submitted by defendant without modification; the said request being as follows: ‘The plaintiff seeks a recovery upon the grounds that his injuries were caused by the careless and reckless acts of defendant in operating and driving his automobile on a public thoroughfare. The defendant denies that his negligence caused the injuries complained of. I instruct you that in order to make out his case, the plaintiff must prove by a preponderance of the evidence that the defendant was guilty of negligence in the manner charged in this complaint, and that his injuries were the direct and proximate result of such negligence on the part of defendant. The plaintiff must show that the defendant did not exercise such care and prudence in operating and driving his automobile as an ordinary careful and skillful driver would use under similar circumstances. If, in your judgment, he has failed to prove this by a fair preponderance of the evidence, he cannot recover.’ It is respectfully submitted that: (a) Said request is a correct statement of the law applicable in this case, and his Honor erred in qualifying said request by saying, T charge you that, gentlemen, with this modification: If the conduct of the defendant was that of wilfulness and wantonness, the plea of contributory negligence is no defense;’ (b) No reference was made -in this request to the defense of contributory negligence, and it was, therefore, improper and prejudicial to the defendant for his Honor to declare that the plea of contributory negligence was no defense if the conduct of the defendant was that of wilfulness and wantonness; (c) Said remarks were calculated to convey the impression that defendant was relying wholly upon the defense of contributory negligence; (d) The modification made by his Honor was calculated to confuse the jury as to the principles of law embodied in this request and to convey the impression that the defendant was guilty of wilfulness and wantonness.</p> <p>XII. “His Honor erred in not charging the third request submitted by defendant without modification; the said request being as follows: ‘The defendant, Chas. W. Muldrow, was not bound to exercise the same care and attention to guard against collision with pedestrians stepping from the sidewalk into the street as would be required at a regular crossing. Crossings are provided for the convenience and safety of pedestrians in crossing the street, and at corners and crossings an automobile should be slowed down and in such control as to be able to be immediately stopped if necessary, but defendant had the right to assume and to act upon the assumption that no person would step from the sidewalk into a public thoroughfare in a place where there was no crossing and where horses, vehicles and automobiles were constantly passing, without first looking about and taking reasonable precautions to observe whether there was any danger of receiving injury from approaching vehicles, horses or automobiles. If, under these circumstances, the defendant exercised reasonable care in driving his automobile, he was not guilty of negligence.’ It is respectfully submitted: (a) That the said request is a correct statement of the law applicable to this case, and that his Honor erred in adding to this charge the modification: ‘But I, also, charge you that in considering the conduct of the plaintiff as to whether he was observing due care and prudence is to ask yourself whether the man of ordinary care and prudence would have acted as the plaintiff did under all the circumstances surrounding him. If he acted as a man of ordinary prudence and care would have acted under all the circumstances, did what that kind of a man would have done, then he is not guilty of contributory negligence;’ (b) This request merely sets forth the duties and rights of the automobile driver and instructs ihe jury concerning the amount of care and prudence which he should exercise; and his Honor’s modification of the request by stating the principles of law which should govern the conduct of plaintiff was, therefore, improper and calculated to confuse the jury as to the principles of law embodied in the request; (c) The remarks of his Honor were prejudicial to the defendant, as they were calculated to convey the impression to the jury that defendant was relying wholly upon the defense of contributory negligence; (d) Said remarks are a plain intimation of his Honor’s opinion that plaintiff was not guilty of contributory negligence.</p> <p>XIII. “His Honor erred in not charging defendant’s sixth request without qualification, the said request being as follows: ‘You are instructed that a person who steps into a public street is bound to remember that horses, vehicles and automobiles have also a right of way there, and he must give due attention thereto.’ It is respectfully submitted that this request is a correct statement of law, and that his Honor erred in charging in connection therewith as follows: T, also, charge you that a man must use his senses in any transaction, and in considering the conduct of the plaintiff in this transaction you ask yourselves the question whether a man of ordinary prudence and care under all the circumstances would have acted as the plaintiff acted. If he did, then he would not be guilty of contributory negligence,’ the error being: (a) A person stepping from the sidewalk into a public street is negligent, as a matter of law, if he does not give attention to the fact that there is danger of approaching horses, vehicles and automobiles; (b) That plaintiff’s own testimony shows that he did not act as a reasonable and prudent person would ordinarily have acted under those circumstances.</p> <p>XIV. “His Honor erred in not charging the defendant’s 5th, 8th, 9th, 10th and 11th requests, submitted by defendant without modification, and in charging that these requests leave out of the consideration of the case the question whether or not the defendant was wilful or wanton in the acts and conduct complained of; it being respectfully submitted that there was no evidence of wilfulness or wantonness on the part of defendant to be considered by the jury,</p> <p>XV. “His Honor erred in refusing to charge defendant’s fourth request, to wit: ‘The fact that one was driving an automobile at a rate of speed greater than that prescribed by statute or municipal ordinance, is not conclusive of negligence on his part, but is evidence thereof to be considered by the jury; and the Court instructs you that even if you should believe from the evidence that the defendant was running his automobile at a speed in excess of the statutory limit of fifteen miles per hour when the accident occurred, that fact does not of itself show negligence on the part of the defendant. The questión before you is solely this: whether the accident could have been avoided by reasonable care and prudence on the part of the defendant. If it could not in any case have been avoided by the exercise of such reasonable care and prudence on the part of defendant, then it is immaterial to this case whether or not the defendant was running his car at a high rate of speed.’</p> <p>XVI. “His Honor erred in refusing to grant the defendant’s motion for a new trial, upon the first ground of said motion and for the reasons stated therein, to wit: ‘Because the verdict was so clearly against the evidence as to indicate that the jury misapprehended the facts or the principles of law governing the case, or that they were influenced by passion, prejudice or other improper motive.’</p> <p>XVII. “His Honor erred in refusing to grant defendant’s motion for a new trial, upon the second ground of said motion and for the reasons stated therein, to wit: ‘Because the evidence clearly shows that the accident could not have been avoided by the exercise of reasonable care and prudence on the part of the defendant; in that the uncontra■dicted testimony of -several witnesses is to the effect that the plaintiff stepped from the sidewalk into the street when the .automobile was less than ten feet distant, and that it was then impossible for defendant to have stopped his automobile or to have guarded against collision with the plaintiff.’</p> <p>XVIII. “His Honor erred in refusing to grant the defendant’s motion for a new trial, upon the third ground of .said motion and for the reasons stated therein, to' wit: ‘Because there was no evidence of such wantonness, wilfulness or recklessness on the part of the defendant as would •deprive him of the right to rely upon his defense of contributory negligence; and the Overwhelming weight of the evidence shows that the plaintiff was guilty of contributory negligence in bringing about the accident, in that he stepped into a public thoroughfare without looking or listening or taking any other precaution to guard against the danger of .approaching horses, vehicles or automobiles.’</p> <p>XIX. “His Honor erred in refusing to grant the defendant’s motion for a new trial, upon the fourth ground of said ■motion and for the reasons stated therein, to wit: ‘Because the plaintiff, by his own admission, did not exercise ordinary care and prudence in stepping from the sidewalk into the street; and his carelessness and negligence was a proximate cause of his injury.’</p> <p>XX. “His Honor erred in refusing to grant the defendant’s motion for a new trial, upon the fifth ground of said motion and for the reasons stated therein, to wit: ‘Because the evidence shows that the plaintiff was guilty of such utter “want of caution and prudence as amounted to recklessness and a complete disregard of the care which he owed to himself.’</p> <p>XII. “It is respectfully submitted that his Honor committed abuse of discretion in refusing to grant the defendant’s motion for a new trial, upon the sixth ground of said motion and for the reasons stated therein, to wit: ‘Because the verdict for punitive damages is so excessive as to show on its face that the jury were influenced by passion, whim or prejudice.’ ”</p> <p>cite: Contributory negligence is a complete defense to a cause of action for negligence: 67 S. C. 78; 61 S. C. 556; 6 C. C. A. US; 72 S. C. 392; 77 S. C. 344; 81 S. C. Ill; 86 S. C. 106. Duty of pedestrian crossing a street: 18 Ency. 579, 585; 19 Am. N. R. 258; 28 Cyc. 28; 65 At. 778; 77 N. Y. Supp. 276; 25 S. E. 484; 18 Ency. 56; 52 At. 1090; 72 S. C. 392; 5 Mun. Corp. Cas. 280, 284; 7 R. R. A. 678; 50 Am. R. 295,- 73 N. E. R. 1019. Were the acts of defendant so wilful or reckless as to deprive him of pleading plaintiff’s contributory negligence? 13 How. 37; 29 Cyc. 509; 91 U. S. 489; 60 S. C. 24; Cool, on Torts 811; 7 R. R. A. 678; 16 R. R. A. 674; 13 Ga. 68; 49 R. R. A. 684; 74 S. W. 1015; 95 U. S. 697; 114 U. S. 615; 11 R. R. A. 674; 8 R. R. A. 783; 1 Sher. & Red. Neg. 99; 2 Quarterly Raw Review 507. Violation of an ordinance is not sufficient to establish wilfulness: 55 Am. D. 674; 7 Ency. 436; 29 Cyc. 508; Wat. Per. Inj., sec. 261; 43 Am. D. 249; 46 Am. D. 694; 124 N. Y. 519; 42 C. C. A. 20; 95'U. S. 697; 84 S. C. 568; 49 R. R. A. 684; 27 So. 1006; 65 111. 638; 36 N. E. 32; 59 C. C. A. 1; 67 Am. St. R. 328; 10 Am. & Eng. R. R. Cas. 715; 3 R. R. A. 196; 5 R. R. A. (N. S.) 230. Speed of auto was not proximate cause of injury: 87 S. C. 324; 108 111. App. 305; 62 Md. 504; 50 Pac. 605; 75 N. W. 629; 27 So. 993; 75 S. W. 4; 18 Am. & Eng. R. R. Cas. 161; 10 Id. 715; 95 U. S. 627. Violating an ordinance requiring an act done is not actionable unless the absence of the required act caused the damage: 124 N. Y. 519; 57 111. R. 309; 29 Cyc. 439; 5 L. R. A. (N. S.) 209; 50 Pác. 605; 20 Am. St. R. 571; 117 Mich. 273; 27 So. 993; 85 Mo. 533; 24 S. W. 57; 18 Ohio.C. C. 298; 49 Am. D. 239; Coll, on Torts 752; 21 Ency. 457; 83 S. C. 354; 87 S. C. 324; 21 Ency. 481. A correct request should not be modified: 11 Ency. P. & P. 246, 251; 38 Cyc. 1723. Opinion evidence should be barred on facts stated: 1 McM. 57; 32 S. C. 129; 19 S. C. 66; 32 S. C. 129; 59 S. C. 311; 63 S. C, 512; 19 Am. Neg. R. 336; 31 Am. R. 321; 7 Am. Neg. R. 642. Doubtful evidence should not be corroborated by opinion evidence: 58 N. E. 607; 19 Am. Neg. R. 336. Failure of ordinary result to follow is some evidence the act zvas not done: 1 Wig. on Ev. 158; 67 S. C. 359. Witness may give opinion if he knows the facts on which it is based: 2 Wig. on Ev. 994; 59 S. C. 318. Party may testify to his own intent or motive: 54 S. C. 505; 57 S. C. 280; 1 Wig. 581; 32 S. C. 129.</p> <p>cite: Admission of evidence of like import cures, error in exclusion: 72 S. C. 426; 83 S. C. 65. Relevancy and competency of evidence is for Judge: 52 S. C. 371; 54 S. C. 335; 60 S.'C. 67; 65 S. C. 1; 75 S. C. 201. Irrelevant evidence must be shown to have been prejudicial: 75 S. C. 264; 76 S. C. 275; 72 S. C. 250; 82 S. C. 199; 83 S. C. 287; 63 S. C. 339; 69 S. C. 443. Speed of 20 miles an hour would not endanger life of occupant of auto: 26 S. C. 49. Witness should not give his opinion of what caused the accident: 74 S. C. 235; 74 S. C. 102; Green. Ev., sec. 440; 63 S. C. 572. Motion for nonsuit is only demurrer to evidence: 4 McC. 372; 14 Cyc. 7393, 452. If motion for direction of verdict is made at close of plaintiff’s evidence and defendant afterward put up evidence the refusal of direction will not be held error: 106 U. S. 700; 120 U. S. 527; 129 U. S. 233; 144 U. S. 202; 107 Fed. 156; 10 Rose’s Notes 438. Where two causes of action are alleged, and there is evidence supporting one, motion to direct a verdict generally should be refused: 72 S. C. 256; 73 S. C. 430. Contributory negligence is no defense to wilfulness: 23 S. C. 531; 61 S. C. 484; 72 S. C. 97. Failure to prove this cause of action could only be raised by motion for nonsuit or to direct a verdict: 83 S. C. 203; 87 S. C. 185. Violation of city ordinance is negligence per se: 83 S. C. 358; 84 S. C. 536; 29 Cyc. 436. Verdict supported by evidence will not be disturbed on ground of excessiveness: 89 S. C. 1.</p>

<p>Before DeVorE, J., Clarendon, January term, 1911.</p> <p>Action by Thomas H. Ridgeway against N. G. Broadway, as surviving member of the firm of Broadway Bros., A. J. Davis and Joseph E. Davis. Plaintiff appeals.</p> <p>cite: The vendee is the equitable owner of the land: 13 Rich. Eq. 345; 57 L. R. A. 643 and notes; 6 Words and Phrases 5141; 34 Am. Dig., Cent. Ed., 3110; 13 Id. 1310.</p> <p>cite: The mechanic’s lien law must be strictly construed: 67 S. C. 11; 30 S. C. 500.</p>

<p>Before Memminger, J., Dorchester, April term, 1911.</p> <p>Action by Ann C. Easterling, Admr. of J. B. Easterling, against the Atlantic Coast Line R. R. Co. and E. A. Boone. Defendants appeal.</p> <p>cite: Under the allegations the case falls within the rule stated in 65 S. C. 214. Where plaintiff’s evidence discloses a case of contributory negligence nonsuit should be granted: 34 S. C. 444; 58 S. C. 491; 78 S. C. 374. One approaching a crossing should use due care: 63 S. C. 404; 76 S. C. 368; 67 S. C. 367.</p> <p>cite: The cause of action is good both at common law and under the statute: 33 Cyc. 1059; 84 S. C. 140. Intestate not guilty of any-negligence: 78 S. C. 374. One acting tmder sudden peril is not guilty of contributory negligence: 78 S. C. 383.</p>

<p>Depositions.—It not being made to appear that but for defendant’s attorney being engaged in Court in this State on the day that depositions were duly noticed to be taken in another State, he would have been present; nor that other counsel could not have been engaged to represent him; nor that defendant was prejudiced by the refusal of the motion to suppress the deposition, its refusal is sustained as these questions are necessarily largely within the discretion of the trial Judge.</p>

<p>1. Forgery.—One ordering liquor by express on an order to which he has signed the name of another is guilty of forgery.</p> <p>2. Ibid.—Evidence.—In such prosecution other orders to which he had signed the name of other parties on which he had received whiskey in the same way, are admissible.</p>

<p>1. Carrier—Freight.—Where goods reach their destination in a damaged condition it is the duty of the consignee to receive and sell them at the nearest market price, deduct the amount from the value of the goods and file claim against the carrier for the balance.</p> <p>Berley v. R. R., 82 S. C. 232, explained.</p> <p>2. Ibid.—Ibid.-—-But where the value of the goods in their damaged condition is so small that it would be probably consumed in the handling, a judgment for their full value is sustained after refusal to charge the above stated doctrine.</p> <p>3. Rehearing refused.</p>

<p>Commissions.—A guardian here who increases his bond by order of Court and thereunder receives and pays out under order of Court funds due his wards in a foreign jurisdiction, is entitled to the usual commissions.</p>

<p>Before Wilson, J., Sumter, December term, 1911.</p> <p>Action by Maud D. Taylor et al. against Isaac Strauss. Defendant appeals.</p> <p>cite: 47 S. C. 97; 35 S. C. 421; 84 S. C. 511; 60 S. C. 147; 54 S. C. 490; 17 S. C. 126; 14 S. C. 436.</p>

<p>Exceptions—Accounting.—In an action upon an accounting referred, exceptions assuming as facts in existence, facts found by the Circuit Court against appellant, are not considered.</p>

<p>Before DeVorE, J., Orangeburg', October term, 1911.</p> <p>Indictment against Clinton Glover. Defendant appeals on the following exceptions :</p> <p>1. “Because life Honor, the Circuit J-U’dge, erred- in overruling defendant’s objection to1 the question: ‘Q. Describe the tracks and what the bloodhounds did?’ The -objection was as follows: ‘It seems that before any testimony as to the tracks and the bloodhounds- can come out- that it must he shown when- the measure of the tracks was taken -and where they were. We object to the testimony on that ground.’</p> <p>2. “The Circuit Court erred in overruling defendant’s objection to the testimony of the witness, Shep Hutto, as to tracks and the drawing of tracks, after the' solicitor bad withdrawn the drawing from the record. -2". (a) And in refusing to strike out said testimony; (b) the Circuit Court further erred in refusing defendant’s motion to restore the whole testimony as to the tracks and drawing subject to defendant’s objection as a whole.</p> <p>3. “The Circuit Court erred in overruling the following objection to the testimony of the witness, U. S. Way: ‘We object 'to the witness 'testifying on) the ground that he says that he does not know what it means to swear in Court.’</p> <p>4. “Circuit Court erred in overruling defendant’s objection to the following questions: ‘You live on one side of the school grounds and she lives on this side?’ Objected to on the ground that the same is leading.</p> <p>“The Circuit Court erred ini overruling defendant’s objection to the following question and answer thereto': ‘You have got a water closet back there where you go1 out? Yes, sir.’ Jacob Moorer, Esq.: We do not think that ought to go in, your Honor. How is that relevant to this case? We object to the testimony on the ground that it is- not in line with the crime charged. This is not the character of offense which is before the Court and where testimony of one’s previous conduct is attempted to be shown it must be in line with previous acts of the same kind. Going in a closet is not in line with the kind of crime charged here.’</p> <p>5. “The Court erred in overruling the following objections': ‘We object to the testimony about the tracks', your Honor has ruled that out.’ The Court: ‘I ruled just the other way.’</p> <p>6. “The Circuit Court erred in overruling the following motion: ‘The motion your Honor is to direct a verdict of not guilty on- the ground that the defendant has not been idem tified as the party who committed the crime charged-, and that there is no evidente to connect him, or to show whose tracks the dogs trailed from this house. The evidence is insufficient to sustain any verdict against him whatever.’</p> <p>7. “The Circuit Court erred in permitting solicitor to draw to tire attention of the jury the fact that there was no testimony introduced by the defense.</p> <p>8. “Tire Circuit Court erred in charging the jury as follows: ‘Now a reasonable doubt, as I have stated time and again in this courtroom, don’t mead some fanciful or imaginary doubt, like a -person might doubt whether the sun would rise tomorrow morning and not be able- to- give any reason for it—it does not mean that kind of a doubt—it means a good strong, substantial doubt.’ This definition of a reasonable doubt misled -the jury and fixed the limits for finding a reasonable doubt beyond reason.”</p> <p>“The Circuit Judge erred -in -overruling the following motion: ‘The defendant moves an arrest of judgment and for a new trial upon the following- grounds :</p> <p>“ ‘First. Because there is no testimony to support the verdict of the jury.</p> <p>“ ‘Second. Because the act under which the indictment was brought, and under which- sentence was passed, entitled /“An act to- prescribe the punishment for rape and assault / with intent to1 ravish, and provide for the talcing depositions [ of female witnesses in such cases,” approved the 3d day of ' March, A. D. 1909, is unconstitutional, null and void:</p> <p>A. “ ‘Because said act is in violation of article 3, section U7, of -the Constitution of 1895 of South Carolina.</p> <p>A. “ ‘Because this act requires the destruction of the /record in such cases, whether the defendant be convicted or acquitted.</p> <p>3. “ ‘Because said act is in violation of the following provisions' of the State and Federal Constitutions. Constitution of South Carolina, 1895 :</p> <p>‘/■‘Article 1. The privileges and immunities of citizens- of .this State and of -the United States under the Constitution shall not be abridged, nor shall any person be deprived -of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the law. Section 18. In all criminal prosecutions the accused shall enjoy the right to a speedy and public triad by an impartial jury and to be fully informed of the nature and cause of the accusation, to be confronted with the witnesses' against him, to have compulsory process for obtaining witnesses in his favor and to be fully heard in his defense by himself, by his counsel or by both.’ Constitution of the United States, article 14:</p> <p>“ ‘Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall .abridge -the privileges or immunities of citizens of the United States; nor shall any State 'deprive any person of life, liberty or property without.due process of law; nor deny to any person within -its jurisdiction, the equal protec•tion of the laws.’ ”</p> <p>cite: Force of ■circumstantial evidence: 92 U. S. 281; 37 N. Y. 580; 100 U. S. (593 ; Best. Ev. 95; Stark Ev. 80; 64 Conn. 329. Withdrazving the drawing as to tracks takes out cdl the evidence relating to them: 68 S. C. 121. There was no proof of the identity of the defendant with the party committing the crime charged: 110 Ga. 293; 88 Ala. 107; 83 S. C. 310; 70 S. C. 430; 52 S. C. 583. Solicitor should not have ■referred to defendant’s not going on the stand: 9 Barb. 609; 72 Mich. 367; 40 N. W. 473; 12 E. R. A. 449; 38 Me. 261; 49 Ind. 124. The act of ipop violates section 17 of article III of Constitution: 79 S. C. 91; Cool. Com. Eim. 171-173; 1 Cranch. 137; 51 S. C. 247; 59 S. C. 52; 68 S. C. 148; 16 S. C. 47; 2 S. C. 516; 74 S. C. 448. The act also, violates .the due process clause of the Federal Constitution: 176 U. S. -398; 1 Mart. 42; Thayer’s Gas. Con. Baw. 63, 73; 1 Bay. 252; 3 Des®. Eq. 466; Brannon 14th Amd. 97; 100 U. S. 313; 167 U. S. 409; 166 U. S. 226; 18 How. 272; 16 Wall. 36; 154 U. S. 34; 4 Wheat. 581; 17 S. C. 462; 16 S. C. 14.</p>

<p>Before Prince, J., Aiken, April term, 1911.</p> <p>Action by J. E. Matttbews against Industrial Lumber Co. in court of Magistrate T. L. Hahn. From Circuit order affirming magistrate judgment, defendant appeals-.</p> <p>cites: Not necessary to prove actual damages: 7 L. R. A. 286 b. n. 2. Regulations for forfeiture generally held valid: 26 Cyc. 1046; 3 Am. Dig. 1908 a. p. 1812, section- 73; 30 Am. St. R. 865; 58 Am. Dec. 718; 7 L. R. A. 287. Mutuality not required: 58 Am. Dec. 718. Employee must have notice, but need not sign: 58 Am. Dec. 721. Posting sufficient: 26 Cyc. 1161; 37 Am. R. 651; 15 S. E. 522. Assent may be presumed by service after notice: 34 Cent. Dig. col. 537, sec. 90; 58 Am. Dec. 718, 722. Stipulation is part of contract: 26 Cyc. 1126; 12 N. E. 280; 23 At. 607; 115 Mobs. 23; 30 N. H. 487; 58 Am. Dec. 720. Regulation need nod contain express words of forfeiture: 58 Am'. Dec. 722; 34 Cent. Dig. col. 537, sec. 90; 26 Cyc. 1648; 84 Mo. App. 526.</p> <p>cites: Contract does not provide for liquidated damages: 13 Cyc. 90; 5 Miss'. 123; 9 la. 599, 265; 38 N. Y. 71; 2 Am. Dec. 160; 13 Cyc. 93, 95; 2 Ridh. 254. Rule is to treat sum as penalty or forfeiture: 13 Cyc. 95. Not analogous to “notice to quit” cases: 6 Am. S't. R. 332; 30 Am. St. R. 614, 867. Rule provides for no penalty for forfeiture: 101 Ga. 625; 13 Cyc. 97; 19 S. C. 425; 9 S. C. 344. Penalty was discharge after payment of wages: 26 Cyc. 1041; 2 S. C. 256.</p>

<p>1. Pleadings—Insurance.—Allegations that a fraternal order was incorporated in one of the States of the American Union and that it has an insurance department for insuring the lives of its members, are sufficient to allege capacity to issue policies of insurance.'</p> <p>2. Estoppel.—An insurance company collecting premiums or dues on a policy or certificate is estopped from denying its capacity to be sued as such organization.</p> <p>3. Contracts—Writings—Insurance.—The writings making up a contract must be construed together. Here' the certificate and by-laws so construed mean that the thirty-six months’ payment of dues making a certificate noncontestible begin to run when the member is transferred to the fifth class.</p>