Volume 92 — South Carolina Reports

<p>Before Spain, J., Richland, February, 1912.</p> <p>Action by B. D. Hughes against Southern Railway Company and R. B. Watts. The complaint, answer and exhibits are:</p> <p>“The plaintiff above named, complaining of the defendants above named, alleges:</p> <p>1. “That upon information and belief the defendant, Southern Railway Company, is now and was at the times hereinafter mentioned, a corporation duly chartered and organized under and by virtue of the laws of the State of Virginia, and at the times hereinafter mentioned, owned and operated, and now own and operates, a certain line of railroad,' together with tracks,' trains, engines and other appurtenances thereto belonging, railroad yards, roundhouses, machine shops, situated in the city of Columbia, in the said county and State of South Carolina; and that, the defendant, R. B. Watts, was at the times hereinafter mentioned, and is now a resident and citizen of 'the State of South Carolina, county of Richland.</p> <p>2. “That on the 4th day of November, 1907, the plaintiff, B. D. Hughes1, was in the employ of the said defendant, Southern Railway Company, as assistant foreman of the roundhouse in the said yard of the defendant, situated, as aforesaid, in the city of Columbia; and that on the said date above mentioned, while in the discharge of his duty as assistant foreman, an engine belonging to the said defendant, Southern Railway Company, and in charge1 and operated by the defendant, the said R. B. Watts, an agent, servant and employee of the said railway company, approached and ran info the said roundhouse.in a careless, negligent and reckless manner and knocked down one of the posts or pillars thereof, precipitating- upon the plaintiff portions of the said roundhouse, throwing him to- the ground, cutting a long gash across the top of his head, bruising his back, meek, shoulder, chest, side and head, and causing a number of bruises on different parts of his body, and seriously and permanently injuring him so that he became ill and sick, and has suffered intense pain from his injuries, and has been put to great expense for medicine and medical attention, and has -been informed and believes that he will never be well again.</p> <p>3. “That ‘the said engine of the defendant, Southern; Railway Company, was being • rani into' the roundhouse for repairs by the.defendant, R. B. Watts, who- ivas at the time, the agent, servant and employee of the defendant, Southern Railway Company; that as said engine moved along the track into the roundhouse, a bar of iron or other obstruction extending ■ outward from said engine, struck with violent force against -an upright post which wasi standing near the said track and supported the ceiling and roof of the roundhouse; that the said upright post was defective material, the same being unsound and rotten; 'and the said roundhouse being old and worn and of defective material; and in maintaining a defective turntable; and the upright post being placed too close to the track leading into the roundhouse; and -the construction1 of the said building being unsuitable, out of date, and too small to allow the large modern engines now owned and used by the defendant, Southern Railway Company, too pass in and out of the said building with safety. That by reason of the upright post being struck as aforesaid, and it being unsound and too close to the track, it was broken and knocked to 'tine ground, and the ceiling and roof being thus left unsupported, fell with it; that the ceiling and roof, consisting of girders, beams and other materials and debris, came down and fell without warning upon the plaintiff and knocked him senseless, bruised and injured him in hisi head and 'body and inflicted upon him' permanent bodily injuries', as above described. That the s-aid injuries received by the plaintiff was caused by the joint and concurrent negligence, carelessness, recklessness and wanton conduct of the defendants, in causing said engine to be run into- the roundhouse with a bar of iron or other obstruction extending outward therefrom; in causing said bar or other obstruction to strike with violent force against said post; and in not providing a post of good material; and' in causing said post to be 'broken; and in causing the ceiling and roof, girders, 'beams, and other materials and debris to be precipitated downward without warning upon the plaintiff, as aforesaid; and in not providing a safe place for plaintiff to work; and in maintaining and operating- an old and worn turntable; and in maintaining and operating a defective roundhouse; and in allowing the upright post to remain too close to the track leading into the roundhouse, to take in and out the large modem engines with safety.</p> <p>4. “That by reason of the said joint and concurrent careless, negligent, reckless and wanton conduct of the def end-ant, Southern Railway Company, and the -said R. B. Watts, agent and employee, a9 aforesaid, in causing the said engine to be run into the roundhouse with the bar of iron or other obstruction extending outward therefrom; and in causing said bar of iron or other obstruction to strike with violent force against said post; and in not providing a post of good material; and in causing- said post to- be- broken; in causing the ceiling and roof, girders, beams1 and other materials and debris to be precipitated downward, without warning, upon the plaintiff as aforesaid; and in not providing a safe place for plaintiff to work; and in allowing the upright post of the roundhouse to remain too close -to the track leading into the roundhouse and in maintaining and keeping an old, defective, out-of-date roundhouse, too small to allow the large, modem engines, owned by the defendant, Southern Railway Company, to go in and out with safety; and in maintaining and operating a defective turntable.</p> <p>5. “That as a result of the said joint and concurrent carelessness, negligence, recklessness and wantonness of the defendants, a© aforesaid, the plaintiff lias been injured in the sum of twenty thousand ($20,000.00) dollars.</p> <p>“Wherefore, plaintiff demands judgment in the sum of twenty thousand ($20,000.00) dollars-, and for the costs of this action.”</p> <p>The following is the answer of the defendant, Southern Railway Company, together with exhibits attached thereto:</p> <p>“The defendant, Southern Railway Company, answering the complaint herein:</p> <p>“For a first defense:</p> <p>1. “Admits the allegations of paragraph one.</p> <p>2. “As to the allegations' of paragraphs two, three, four and five, this defendant admits that oni the date named in the complaint the plaintiff, B. D. Hughes, was in the employ of this 'defendant as acting assistant foreman of the roundhouse, and that on said date, the plaintiff received! some injuries by reason of one of the posts of 'the said ro-und1house being knocked down by one of the defendant’s engines, for which- accident plaintiff was responsible. As to the extent of the injuries, this defendant alleges, upon information and belief, that they were slight and temporary. Denies each and- every allegation of said paragraphs two, three, four and five not hereinabove admitted.</p> <p>3. “Denies each and every allegation in said complaint contained not -hereinabove specifically admitted or denied.</p> <p>“For a second defense:</p> <p>“Alleges that the plaintiff, at the time of entering upon said services as alleged in the complaint, and thereafter, knew of the risks ordinary or otherwise incident thereto, including the alleged risk alleged to have resulted in the injury of which he complains, and that with said knowledge he fully assumed the said risks and thereby waived any right on- 'his part to hold this defendant liable to him therefor.</p> <p>“For a third1 defense:</p> <p>“Alleges, on information and belief, that on the occasion referred to in the complaint, plaintiff was- himself guilty of carelessness, negligence and recklessness in giving signals to the engineer in charge of said engine, said engineer 'being at the time under the direct control and management of the plaintiff herein, and in carelessly, negligently and recklessly allowing the said engineer to proceed with the said engine into the said roundhouse when he knew the same could' not be done without injury to himself and others-, and that such carelessness, negligence and recklessness on his part, contributed to a proximate cause of his injury, without which same would not have occurred.</p> <p>“For a fourth defense:</p> <p>1. “The defendant alleges that 'after the time of the alleged injury and before the commencement of this action, to wit, on the 18th day of November, 1907, in consideration of the payment of one dollar to the plaintiff by this defendant, tibe sai'd plaintiff executed and delivered to- this defendant, a written release in full satisfaction and discharge of all claim® for damages resulting from the injury alleged in the complaint herein.</p> <p>2. “This defendant further alleges that subsequent to the execution of the said release, to wit, on the 23d day of April, 1908, the plaintiff herein, B. D. Hughes, commenced in the Court of Common Pleas for Richland county an action against the said defendant, Southern Railway Company, as will appear 'by the record in said'cause, and in said complaint alleged -substanitialfy- the same facts as to the said accident as are set out in the above entitled action, and further alleged plaintiff’s injury in said accident and the execution and delivery of a release to the defendant, Southern Railway Company, by plaintiff of all claim against it' on account of said alleged injuries. Said complaint was duly answered, and thereafter, on the loth day of June, 1910, the said cause proceeded regularly to trial in said Court before his Honor, J. W. DeVore,- presiding Judge, and a jury, resulting in an order of nonsuit. Attached hereto, and1 made a part hereof, are the complaint, answer and order of nonsuit, marked, respectively, Exhibits ‘A,’ ‘B’ and ‘C.’ That no- appeal was ever taken from said order of nonsuit-. This defendant' now plead® that 'the validity of said release has been adjudicated in the aforesaid action and plaintiff is now estopped from maintaining this action.”</p> <p>Exhibit “A.”</p> <p>“The plaintiff above named, complaining of the defendant above named, alleges:</p> <p>1. “Upon information and belief, that the defendant, Southern Railway Company, is now and was at the times hereinafter mentioned, a corporation duly chartered and organized imder and by virtue of the laws of the State of Virginia, and at the times hereinafter mentioned, owned and operated, and now owns 'and operates, a certain- line of railroad, together with 'tracks, trains, engines and other appurtenances 'thereto belonging, railroad yards, roundhouses, machine shop, -situated in- the city of Columbia, in the said county of Richland, in the said- State of South Carolina.</p> <p>2. “That on or about the 4th day of November, 1907, the plaintiff, B. D. Hughes, was in the employ of the -said defendant as assistant foreman of the roundhouse in the said yard of the said defendant, situated as aforesaid, in the city o-f Columbia. That while in the -discharge of his duties as assistant foreman, am -engine belonging to the said defendant ran into the said roundhouse and knocked down one of the pillars thereof, precipitating upon the plaintiff portions of the said roundhouse, whereby seriously injuring him. That on or about the 16th day of November, 1907, the plaintiff entered into an agreement with the defendant -that he would release to1 the defendant all claims he had against the defendant, resulting from the said injuries to hitm; and the said defendant, in consideration -of the said release, wo-ul-d pay to the plaintiff the sum of one ($1.00) dollar, and restore the plaintiff, without any loss- -of time, to his said' position as assistant foreman of the said1 roundhouse.</p> <p>3. “That in performance of the sáid agreement, the' plaintiff did on or about the said 18th day of November, 1907, execute and deliver unto the said defendant, a release of all claims' against the said defendant on account of the said1 injuries', and the defendant ini part performance of the said agreement, paid to the plaintiff the said sum of one dollar and soon thereafter restored the plaintiff to' his said position as. assistant foreman of the said roundhouse; and the plaintiff duly entered into the performance oif said duties as said assistant foreman, on or about the 19th day of November, 1907.</p> <p>4- “That soon after entering upon the performance of his said duties, to' wit, about one week thereafter, the plaintiff was removed from said position ‘by the defendant, without cause and with intent to' violate said agreement, and said position given toi another person. That plaintiff thereupon demanded that the said position be restored to him under the terms of said agreement, but the said defendant wantonly and wilfully failed and refused and stall refuses to restore the same to him under the term©' of the said agreement, and the plaintiff alleges that by reason of the refusal of the said defendant to' carry out the terms of the said agreement, and on account of the breach thereof, as aforesaid, he has been damaged in the sum of seventeen thousand dollars.</p> <p>“Wherefore, plaintiff demands judgment against the defendant in the sum of seventeen thousand ($17,000) dollars.”</p> <p>Exhibit “B.”</p> <p>“The defendant, Southern Railway Company, answering the complaint herein:</p> <p>1. “Admits the allegations of paragraph one, unless the property or any part thereof referred to is included in the lease from Southern Railway — Carolina Division to Southern Railway Company, of date June 30, 1902, in which event it denies the allegations as to ownership of same.</p> <p>2. “As to the allegations of paragraph' 'two, admits that on the d'ate mentioned, plaintiff, while in the employ of the defendant ini the capacity of acting .assistant foreman of the roundhouse, was injured in consequence of an engine running into said roundhouse (for which accident plaintiff was responsible). It denies that said injuries were serious; on the contrary, alleged on information and belief that they were very slight. It admits further that plaintiff thereafter executed a written release to» defendant of all claims arising against it or growing- out of the said accident, and that plaintiff thereupon resumed his duties as acting- assistant foreman of the roundhouse, without any loss of time; in other words, no reduction was made from his salary or wages on account of two weeks’ time lost ini consequence of said' accident. Denies each and every allegation of said paragraph twoi, not hereinabove specifically admitted or denied.</p> <p>3. “As to allegations of paragraph three, admits that plaintiff executed a release to defendant on or about' the date stated in full of all claim® against defendant on account of said injuries; and that plaintiff thereafter, on the 19th day of November, 1907, resumed bis duties as acting assistant foreman1 of the roundhouse. Denies each and every allegation of said paragraph three not herein specifically admitted.</p> <p>4. “As to. the allegations of paragraph four, admits that about a week after plaintiff had resumed his work as acting assistant foreman of the roundhouse, on account of his unsatisfactory work and failure to perform, 'the duties of that position, he was given a position' of machinist, having had several years’ experience as machinist. Defendant alleges that plaintiff, after a week’s work as machinist, quit its service. Denies each and every allegation of said paragraph four, not above specifically admitted.</p> <p>5. “As to each and every allegation of said complaint not hereinabove specifically admitted or denied, defendant denies the same.</p> <p>“For a second defense:</p> <p>“The defendant alleges1 that although 'the ''alleged agreement upon which' this action' was 'brought by its terms was not to be performed within! the space of one year from the making thereof, neither said agreement nor any note or memorandum thereof was ever in writing- and subscribed by the said Southern Railway Company, wh'ioh it ought to be charged therewith, or some person thereto' by its lawful authority.”</p> <p>Exhibit “C.”</p> <p>“This case came on for trial June 15, 1910.</p> <p>“After the plaintiff had been sworn and commenced1 his testimony he sought by his attorneys to prove a parol agreement about the same subject matter made prior to the execution of the written agreement referred to in the complaint. The written agreement (release) was exhibited to' the plaintiff by defendant’s attorney and plaintiff admitted the execution thereof and the receipt of the consideration, viz.: one ($1.00) dollar, and said1 release was admitted in evidence. Defendant’s attorney then objected to any testimony tend>ing to show the alleged prior oral agreement referred to in the complaint, on the grounds taken down by the Court stenographer; first, that if there is such an oral' agreement it was merged in the written release; that it was obnoxious to the statute of frauds; and third, that it was void, being indefinite as to time, terms or conditions.</p> <p>“After hearing argument the objections were sustained; plaintiff’s attorneys thereupon, stated that they would have to submit to a nonsuit in view of such ruling, and a nonsuit is accordingly granted. J. W. DeVore, presiding Judge. Columbia, S. C., June 16, 1910.”</p> <p>Plaintiff appeals.</p> <p>cites.- Does the former order of nonsuit constitute an estoppel in this action? 24 Ency. 778, 793-4; 17 S. C. 35; 19 S. C. 150; 24 S. C. 479.</p> <p>cites: Plaintiff elected to sue on breach of release, the judgment thereon estops him from recovering on the damages released from: 36 S. C. 596; 15 Cyc. 259. The release was conclusively adjudicated and is a bar to this action: 84 S. C. 242; 43 S. C. 221; 18 S. C. 602; 140 Fed. 385.</p>

Before Robert Aldrich, J., Marlboro. November, 1911. Indictment against E. E. Hertzog and R. H. Rudisail. Defendants appeal on the following exceptions: First. “Because the indictment contains three counts, two under the act of 1896, as amended by the act of 1897.

<p>Before Copes, J., Sumter, November term, 1911.</p> <p>.Action by Mrs. E. A. Lowry against Atlantic Coast Line R. R. Co. Defendant appeals on the following exceptions:</p> <p>1. “His Honor erred in overruling defendant’s motion for leave to amend its answer and in holding that sufficient notice of such motion had not been served on plaintiff’s attorney, it being respectfully submitted that ample notice had been given and that defendant was entitled to have the merits of its motion passed upon.</p> <p>2. “His Honor erred in refusing to exercise his discretion and pass upon the merits of defendant’s motion for leave to amend its answer, and in holding as a matter of law that he did not have the power to pass upon the merits of the motion; whereas, it is submitted, his Honor had ample power to hear said motion, either under the notice served in June or the notice served in November.</p> <p>3. “His Honor erred in refusing to allow defendant to renew, on the call of the case on Tuesday, November 7th, the motion made on the previous day, notice of such motion having been given in any event, on the 3d day of November, and his Honor at such time not having ruled on the said motion; and, it is respectfully submitted, his Honor abused his discretion in holding that he had no power to consider such motion as of the 7th day of November, but was bound by the notice as of the previous day.”</p> <p>Exceptions 4, 5, 6, 7 abandoned.</p> <p>8. “His Honor erred in permitting plaintiff, over defendant’s objection, to testify concerning statements made to her by defendant’s agent to the effect that plaintiff could have repairs made to the goods which defendant would pay for, such testimony being inadmissible because (a) such declaration on the part of the agent was not part of the res gestae, (b) the conduct and statement of the agent referred to tended to show an attempt on the part of the agent to compromise the claim of plaintiff by making certain repairs, and (c) there was no evidence at such time that the agent had authority to bind defendant by an agreement to incur such an expense. His Honor further erred in refusing to strike out, on defendant’s motion, the evidence in question.</p> <p>9. “His Honor erred in admitting, over defendant’s objection, receipted bill for repairs to goods, such bill being inadmissible because (a) in view of the evidence otherwise it tended to show an attempt on the part of the agent to compromise plaintiff’s claim, and (b) there was no evidence at such time that the agent had authority to bind defendant by an agreement to incur such an expense.”</p> <p>Exception 10 abandoned.</p> <p>11. “His Honor erred in overruling defendant’s motion for direction of verdict in its favor, at the close of all the evidence, whereas he should have granted such motion upon the grounds stated and for the reasons urged in support thereof, to wit: (1) because there was no evidence that any of the damage occurred while the property was in defendant’s possession, (2) because there was no evidence that any portion of the goods was lost after their delivery to defendant, (3) because there was no evidence of delivery to the initial carrier in good order, (4) because even if there was evidence of delivery to the initial carrier in good order, sufficient to raise the presumption that the loss and damage occurred on defendant’s line, defendant’s evidence completely rebutted the presumption and as a matter of law his Honor should have so held, (5) because the repairs made by defendant’s agent did not constitute evidence of defendant’s liability for the loss and damage, in that (a) such evidence was inadmissible as tending to show an offer of or attempt to compromise, (b) there was no evidence that the agent had authority to incur such expense, and (c) the evidence otherwise conclusively showed that the agent had not such authority and that his action in this respect was disapproved by defendant; beyond this, the evidence conclusively showed that at the time of the transaction in question defendant’s agent did not know where the loss occurred, had no information tending to suggest that the loss and damage had occurred on defendant’s line, and that his action was taken solely on his own responsibility.</p> <p>IS. “His Honor erred in refusing to charge defendant’s first request, as follows: ‘I charge you that the presumption of loss and damage by the last carrier cannot arise in any case where there is credible evidence tending to show that prior to delivery of goods to the last carrier they were not, in fact, in good order.’ It is submitted this request contained a sound proposition of law, directly applicable to the facts of the case, and should have been charged.</p> <p>13. “His Honor erred in modifying defendant’s second request, and in not charging it as submitted, the request being as follows: T charge you that the action of defendant’s agent having repairs made to plaintiff’s household goods cannot be construed as an admission of liability on the part of the defendant, unless you are satisfied from the greater weight of the evidence that the agent had the authority to incur the expense of making these repairs, or, that the defendant, after they were made, ratified or approved his action in this regard,’ the modification being that his Honor interpolated, immediately following the word ‘authority’ the words ‘express or apparent.’ It is submitted the request contained a sound proposition of law, directly applicable to the facts of the case, and that the modification imposed upon defendant in the submission of the case to the jury too harsh a rule, in that in no event under the circumstances shown could the repairs made by the agent be construed as an admission of liability by defendant unless the agent actually had the authority in question.</p> <p>14. “His Honor erred in charging plaintiff’s second request, which was as follows: ‘The jury is further instructed that the bill of lading in this case shows upon its face that the goods in question were received by the initial receiving road in apparent good condition, and the burden is on the defendant to show that they were not received in such condition. And where it is shown that the goods were one shipment and received in good condition, the law raises a presumption that such condition continued; and where it is shown that the last carrier delivered a part of the one shipment, then the law presu'mes that the last carrier received all of the goods, and the burden is then on the defendant to show that it did not receive the entire shipment.’ It is respectfully submitted this charge was erroneous, for the reasons: (1) In charging the jury that the bill of lading ‘shows upon its face that the goods in question were received by the initial receiving road in apparent good condition,’ his Honor charged upon the facts, it being a question for the jury to say how far the bill of lading under the circumstances tended to show such fact; (2) in charging the first portion of the request his Honor instructed the jury that upon proof of delivery to the initial carrier in apparent good condition, the burden was on defendant to show that they were not received in such condition, whereas the burden on defendant could be no greater than that it must have shown that the loss and damage proved did not occur while the goods were in its possession, the undisputed proof showing that the goods were carried successively by six or eight different carriers — the charge in this particular leading the jury to believe that defendant must not only rebut the presumption of loss and damage on its own line, but that the goods ‘being received by the initial receiving road in apparent good condition’ defendant must show ‘that they were not received in such condition.’</p> <p>15. “His Honor erred in overruling defendant’s motion for new trial, whereas he should have granted such motion upon the first or third grounds thereof, such grounds being as follows: 1; ‘There was no evidence that the loss and damage occurred while the property was in defendant’s possession.’ ' 3. ‘The evidence shows indisputably that the greater portion of the loss and damage occurred before delivery of the property to defendant, therefore the verdict is palpably excessive.’ ”</p> <p>cite: Motion to amend should have been granted: 83 S. C. 557; 85 S. C. 458; 82 S. C. 12. Agreement to repair should not have been admitted: 28 S. C. 160; 16 Cyc. 949; Elliott on R. R., secs. 210-212, 217, 220. Defendant is not liable for defective packing in sealed car: 6 Cyc. 380; Elliott, sec. 1492; Hutch on Carr, secs. 163, 333. Presumption against last carrier: 6 Cyc. 490-491; Elliott, sec. 1450; 43 Barb. 225; 28 Wis. 204; 63 S. C. 565; 60 S. E. 8; 63 S. C. 655; 74 S. W. 343; 76 S. C. 308; 61 S. E. 1111; 53 S. E. 620; 77 S. C. 148; 82 S. C. 482; 29 S. C. 235. Admission of agent may be explained: 16 Cyc. 1045, 1003. Admission of declaration of agent: 16 Cyc. 1003, 1005, 1023.</p> <p>cite: Notice served too late: 67 S. C. 296; 43 S. C. 173. Amendment not the remedy: 74 S. C. 236. The issue of the greater weight between a legal presumption and other evidence is for the jury: 87 S. C. 134. Principal must show acts of agent are without scope of his authority: 47 S' C. 139.</p>

Before C. C. FeaThErstone, Special Judge, Laurens, April term, 1910. Action by Z. R. Traynham against the Charleston and Western Carolina Ry. Co. Defendant appeals. Messrs. Simpson, Cooper & Rabb cite: This is an interstate shipment: 81 S. C. 169. Mr. Grier cites: The act should be construed to apply to transportation within the State: 9 Wheat. 189; 95 U. S. 469; 202 U. S. 543; 22 S. C. 236; 81 S. C. 69; 17 D. R. A. 643.

Before Gary, J., Spartanburg, November term, 1911. Indictment against Ed. Wooten. Defendant appeals. cite: Statute relates to a former conviction under it: 89 S. C. 140; 9 S. C. 288; 55 S. C. 205; 108 Ala. 35. Former conviction should not he proved before jury: 8 Rich. 460, 448; 44 S. E. 873; 69 Me. 573; 109 Pa. 54. Introduction of the record was an improper attack on defendant’s character: 26 S. C. 120; 33 S. C. 593.

Before SeasE, J., Beaufort, June term, 1911. Action by Lulu V'. Stephens et al. against Long & Bellamy. Defendants appeal. The following plat elucidates the issues in the case: cite: Copy of certificate of purchase was not admissible: 73 S- C. 506. Court should 'construed the deed: 81 S. C. 313; 71 S. C. 271; 22 S. C. 288. Rule of construction: 2 Strob. 158; 42 S. C. 343; 1 Strob. 143; 5 I,.

Before Wilson, J., Richland, November term, 1911. Action by Thomas Bennett, Guardian of H. P. Bennett, against Columbia Electric Street Railway, Right and Power Co. Defendant appeals. cite-: If proof of zvilfulness be doubtful, the proof will be held to establish negligence: 79 S. C. 211; 82 S. C. 93; 84 S. C. 484. What is evidence of wilfulness: 6 Rich. 52; 3 Black.

<p>Before Prince, J., Anderson, Spring term, 1912.</p> <p>Action by Geo. W. Evans against Blue Ridge Railway Co. and Southern Railway Co. Defendants appeal.</p> <p>Contributory negligence is no defense to gross recklessness: 61 S. C. 187; 74 S. E. 473; 61 S. C. 404. Under proof here, issue of proximate cause is for fury: 90 S. C. 277; 83 S. C. 357.</p>

Petition in the original jurisdiction of this Court by J. Fraser Lyon, Attorney General, against J. W. McCown, Chairman; T. L. Clinkscales and John S. Horlbeck, as ■State Warehouse Cornmission, for the purpose of obtaining a construction of the following act, 27 Stats. 707 : “'An Act “To Create and Operate a State Warehouse System for Storing Cotton and Other Commodities.

Before Gary, J., Spartanburg, November term, 1911. Action by R. E. Allen, Bro. & Co. against Warren DuPre Burnett.

Before Spain, J., Richland, April term, 1913. Action by J. B. Mej^er and E. V. Bunn against the Atlantic Coast Line R. R; Co. Plaintiffs appeal. No argument furnished Reporter. cite: A carrier is not liable for merchandise shipped under guise of baggage: 138 Fed. 15; 71 Am. Dec. 156; 11 At. 605; 64 Mass. 506; 98 Am. Dec. 140; 30 Am. R. 667; 34 Am. R. 376; 13 N. W. 447; 4 Mo. App. 583; 35 Wend. 459; 61 Hun. 546; 59 Hun. 635; 38 N. Y. Supp. 341; 148 U. S. 637; 17 Fed. 309.

Before Copes, J., Lee, November term, 1911. Action by Sebastian W. James et al. against Martha A. Ferguson et al. Defendants appeal. cites: The order granting the new trial is appealable: 2 S. C. 388; 64 S. C. 485; 68 S. C. 46. Before record of deed can be introduced, loss of original must be shown: 49 S. C. 242; 2 Bail. 269; Code 1902, 2895; 79 S. C. 250; 5 Rich. 373. What is judicial discretion f 47 S. C. 498.

<p>1. “Case.”' — A statement of the evidence not submitted to respondent for approval or correction should not be inserted in a “Case.”</p> <p>2. Master am Servant.' — The instructions given in this case by giving requests of plaintiff and defendants as to the liability of the master for not furnishing a safe place and in not employing competent servants when construed as a whole did not give the jury conflicting and irreconcilable propositions of law.</p>

<p>Before Copes, J., Dillon, October term, 1911.</p> <p>Action by E. V. Taylor and Austin Hamilton against Thomas Jackson and Nedie Jackson. Plaintiffs appeal.</p>

<p>1. Mortgage Lien — Tender.—A mortgage lien is not discharged by an offer by mortgagee to have the debt secured by the mortgage paid by another and the papers assigned to him.</p> <p>S. Ibid.- — Ibid.—Waiver.—A mortgagee may waive a legal tender of the amount due on a mortgage debt by rendering an incorrect account and declining to accept anything unless the amount claimed is paid. But if he insisted on payment of such amount in the honest belief that it was correct and such belief was based on reasonable grounds, a legal tender of the amount actually due would not discharge the lien.</p> <p>3. Damages. — The measure of damages for failure to deliver rent cotton on the day it was to be delivered is the difference between the value of the cotton on the date it should have been delivered and the date it was delivered and the interest on the value on the day it should have been delivered to the day of payment.</p> <p>4. Account — Interest.-—A contract to pay interest on an open account from a certain date is valid and when the amount due on that date is ascertained, interest should be calculated on that amount from the date agreed on. That the debtor disputes some items in the account does not affect it.</p>

<p>Before Memminger, J., Anderson, January term, 1912.</p> <p>Indictment against George Johnson and Enoch Ware. Defendants appeal.</p> <p>cite: Does a subpoena hold good until revoked or case triedf Crim. Code 45; 47 S. E. 535; 10 Jur. N. S. 33; 31 So. 1011; 32 N. C. 41.</p>

Before Aedrich, J., Cherokee, November term, 1910. Action by Gaffney Live Stock Co. against E. B. Bonner. Defendant appeals. cite: There was error in ruling out defendant’s pleas and limiting the inquiry for the jury: 24 Ency. 284, 285; 86 S. C. 143, 317; 35 S. C. 165; 49 S. C. 550. cite: Plaintiff entitled to opening and reply: 63 S. C. 290; 75 S. C. 15, 342; 29 Cyc. 1545.

Petition before Mr. Justice Woods, at Chambers, by the Charleston Consolidated Railway and Lighting Co., for a temporary injunction restraining the city council from enforcing certain rates fixed by it for light, heat and power.

Before Spain, J., Richland, April term, 1913. Action by F. G. Davis, Admr., with the will of John Milady annexed, against Susan'Milady et al. Defendant Trannie Cooper appeals.

<p>Before Watts, J., York, November term, 1911.</p> <p>Action by Elias Ramsey, Admr. of A. W. Ramsey, against W. E. Hill, trading as Hill Banking and Mercantile Co. Defendant appeals.</p>

Before Wilson, J., Spartanburg, April term, 1911. Action by J. D. Nelson against Charleston & Western Carolina Ry.

<p>Before Copes, J., Marlboro, Summer term, 1911.</p> <p>Action by Georgia Dimery against Bennettsville & Cheraw Railroad Co. Plaintiff appeals.</p>

Before B. M. Shuman, Special Judge, Greenville, December term, 1911. Action by J. W. Moon and J. J. Henson against John Tooley, Hovey Tooley and David Tooley in court'of magistrate O. M. Allen. Plaintiff appeals from Circuit order. cites: Justice should make return on defective notice: Wait’s Proc. 421. Judgment properly entered in Circuit Court: 56 S. C. 426.

Before DeVore, J., Lee, March term, 1911. Action by Charley Lowry against Atlantic Coast Line R. R. Co. Defendant appeals. Mr. Dennis cites: Judge did not object that requests came too late and he alone should invoke the rule: 69 S. C. 531. cites: Requests should be handed up before argument: 78 S. C. 398; 88 S. C. 162.

Before Watts, J., Spartanburg, July term, 1911. Action by Grace Lancaster et al. against Southern Railway — Carolina Division. ■ Defendant appeals. cite: Punitive damages should be awarded only where the motive is bad or criminally indifferent: 35 S. C. 488; •81 S. C. 143. It is a charge on facts to instruct jury what acts make up due-care: 67 S. C. 65; 61 S. C. 556; 71 S. C. 159; 63 S. C. 439; 90 S. C. 25.

Before Prince, J., Clarendon, September term, 1910. Action by Joel Benbow and Susannah L., his wife, against J. B. Plarvin et al., of whom H. E. B. Wells is appellant. cite: Declarations of a party at another time as to a lost deed is not admissible: 8 Ency. 453, 454; 3 Des. Eq. 373; 5 Rich. 373; 1 Ency. 600; 79 S. C. 353; 39 S. C. 441; 3 Brev. 40; 39 Ala. 457; 1 Ene. Ev. 601, n. 36.

<p>Before Gary, J., Spartanburg, November term, 1913.</p> <p>Action by Alexander Walker, by guardian, against Southern Bell Telephone and Telegraph Co. and Spartan-burg Street Railway, Gas and Electric Co. Defendants appeal.</p> <p>cite: Plaintiff was a trespasser: 38 Cyc. 995; 29 Cyc. 444; 38 Cyc. 1002; 29 Cyc. 426. As to charge on the facts: 47 S. C. 517; 87 S. C. 193. These authorities throw light on the rights and liabilities of the parties: 70 S. C. 13 6; 50 S. E. R. 987; 50 S. E. R. 1003; 53 S. E. R. 379; 76 S. W. 394; 89 N. W. 73.</p> <p>cite: Admitting testimony in reply is within discretion of trial Judge: 43 S. C. 91; 16 S. C. 378. Statement of issues or of hypothetical statement of facts is not a charge on the facts: 88 S. C. 163; 63 S. C. 546; 63 S. C. 373.</p>

Before WiESON, J., Union. Action by Ellen Neal against Southern Railway Co. Defendant appeals. cite: The act of plaintiff is the proximate cause of her injury: 75 S. C. 355; 51 S. C. 484; 53 S. C. 412. Defendant not guilty of negligence: 44 Am. St. R. 476; 35 S. C. 484; 69 S. C. 444.

Before DsVorE, J., Clarendon, May term, 1911; Action by J. R. Hill against Jack N. Hill et al. The report of S. Oliver O’Bryan, referee, is: “On December 19, 1873, one C. W. Weeks conveyed in ' fee unto W. F. Hill, F. A. Geddings, H. M. Brown, A. P. Hill, J. R. Hill and A. K. Hill, the latter subsequently marrying John G. Kolb, the tract of fifty acres of land described in the complaint. “Many years ago N. H. Hill, the father of the above grantees and with whom they live…

Before Ernest Moore, Special Judge, Lancaster, October term, 1910. Action by W. J. Long against Western Union Telegraph Co. Plaintiff appeals. cites: The defense of no du-ty to deliver service message should have been pleaded: 13 L. R. A. (N. S.) 445; Thomp. on Neg., sec. 2506; 46 L. R. A. 238; 70 S. C. 211; 75 S. C. 68; 73 S. C. 503; 84 S. C. 117. There zvas a zvaiver of the right to demand pay for delivery beyond the delivery limits: 27 Ency. 1040; 74 Am.

Before Gage, J., Laurens, November term, 1911. cite: Where there is an honest bona fide effort to deliver the Court should direct the verdict as to punitive damages: 65 S. C. 99; 72 S. C. 264; 73 S. C. 386, 522; 77 S. C. 148; 78 S. C. 109; 79 S. C. 160; 83 S. C. 12; 84 S. C. 59, 71, 160; 84 S. C. 160; 87 S. C. 320; 82 S. C. 87. Whether delivery to a third person is due care is for jury: 10 Am.

Before Ernest Gary, ]., Spartanburg, January, 1912. Condemnation proceedings by Southern Power Co. against A. L. and T. J. White. Plaintiff appeals from the following Circuit order: “This was an appeal by both parties from the verdict of a jury empanelled by the clerk in condemnation, and came on for hearing at the November term of said Court.

Before Gage, J., Lexington, November term, 1910. Action by T. L. Martin against The Home Bank. The plaintiff appeals. cite: A written instrument should not be modified by parol evidence: 17 Cyc. 570; 125 Fed. 110; 2 Strob. 122; 21 Ala. 122; 119 Ala. 424; 10 N. W. 355; 76 N. Y. Supp. 213; 24 Wend. 419; 8 Johns 375; 35 Pa. St. 448; 2 Lock. Leg. Rec. 383; 20 Plow. 442; 104 U. S. 30; 2 M. Con.

Before Frank B. Gary, J., Charleston, June term, 1912. Two actions (1) by West End Development Co. against John P. Thomas, the Mayor of the city, and the Commissioners of Colonial Common and Ashley River Embankment; (2) same plaintiff against W. J. O’Hagan and same defendants. The defendants in both cases, John P. Thomas and W. J. O’Hagan, appeal. cite: The legislature has the power to annul any grant to a municipality: 2 McC. 355; 4 Wheat. 518.

Before Wilson, J., Richland, October term, 1911. Held: from the plaintiff’s testimony, that the plaintiff had assumed the risk of the injury he sustained, and should have granted the motion. 25. “That his Honor erred in refusing to direct a verdict for the defendant as requested in defendant’s sixth request to charge, as follows, to wit: “ ‘The jury is instructed to find a verdict for…

<p>Before Ardrich,. J., Spartanburg.</p> <p>Action by W. H. Jones against Enoree Power Company. Plaintiff appeals.</p> <p>cite: Agreements to arbitrate are always revocable: 3 Eng. Rul. Cas. 357; 7 Am. St. R. 747; 3 Cyc. 610, 613; 1 Enc. 664, 665, 667; 6 Dana 307; 60 N. H. 54; 49 Neb. 280; 31 E. R. A. (N. S.) 679.</p> <p>cite: Generally on the subject of arbitration and revocation: 2 Ency. 573, 574, 579 ; 15 B. R. A. 142; 5 H. R. Cas. 811; 48 S. E. 697; 78 S. C. 203; 38 Am. R. 57; 1 Am. R. 91; 3 Cyc. 595; 51 S. E. 640; 19 B. R. A. (N. S.) 973.</p>

Before Ernest Gary, J., Greenville, November term, 1910. Action by Guarantee Company of North America against John H. Charles, Sr. Defendant appeals on the following exceptions: I. “The presiding Judge erred in admitting in evidence the statements, Exhibits ‘A,’ ‘B/ ‘C,’ ‘D,’ ‘E,’ ‘E’ and ‘G/ upon the ground that the same are copies, and that the originals are the best evidence thereof.

<p>Before Watts, J., Spartanburg, July, 1911.</p> <p>Action by E. E. Stallings against Southern Railway in court of magistrate S. M. Wetmore. From Circuit order affirming magistrate judgment, defendant appeals.</p> <p>cites: The penalty act of ipio is unconstitutional in that no reference is made to this provision in the title: 68 S. C. 149; 76 S. C. 332; 89 S. C. 94; 75 S. C. 425.</p> <p>cites: The penalty act is not invalid as alleged: 16 S. C. 47; 75 S. C. 427; 76 S. C. 332.</p>

<p>Before Wilson, J., Richland, October, 1911.</p> <p>Action by H. C. Craft against Seaboard Air Line Railway. Plaintiff appeals.</p> <p>Messrs. Best & Cunningham cite: The defendant is liable whether the path connects two public places or not: 67 S. C. 449; 75 S. C. 290; 90 S. C. 331.</p> <p>cite: Under the Mathews case the appellant cannot recover here: 67 S. C. 499. Cases affirming the doctrine of that case and applicable here: 68 S. C. 483; 72 S. C. 389 ; 82 S. C. 321; 75 S. C. 292; 86 S. C. 106; 90 S. C., 331. Same rules apply to acquisition of public pathway as to a public road: 2 Strob. 60; 11 S. C. 360; 37 Cyc. 16. The use must be by the general public: 39 S. C. 23; 63 S. C. 439, 494; 77 S. C. 494. And zvhere the public have the right to travel: 34 S. C. 292, 444; 41 S. C. 20; 47 S. C. 376; 59 S. C. 433. If the verdict should have been for defendant under any view of the case, then plaintiff has not been prejudiced: 23 S. C. 96; 40 S. C. 193; 47 S. C. 60; 59 S. C. 508; 64 S. C. 519; 75 S. C. 158; 38 S. C. 305; 82 S. C. 180; 40 S. C. 152; 24 S. C. 503.</p>

<p>Befofe Copes, J., .Marlboro, July term, 1911.</p> <p>Action by Hannah J. Spears and Henry B. Spears against Atlantic Coast Line Railroad Company. Defendant appeals.</p> <p>Mr. Livingston cites: What amendments may be granted during trial: 21 S. C. 226, 221; 30 S. C. 564, 199; 84 S. C. 578; 68 S. C. 506; 72 S. C. 256; 78 S. C. 419. Contributory negligence is a defense: 39 S. C. 517; 65 S. C. 217; 63 S. C. 1536; 87 S. C. 325. Nonsuit should have been granted: 82 S. C. 49; 39 S. C. 517; 65 S. C. 217; 63 S. C. 536; 87 S. C. 325; 7 S. C. 402; 57 S. C. 211; 63 S. C. 494; 83 S. C. 335.</p> <p>cite: As to counsel reading case to jury: 82 S. C. 71; 80 S. C. 352. As to amendment of complaint during trial: 86 S. C. 98. New trial for excessive damages: 65 S.'C. 356; 71 S. C. 95. Por insufficiency of evidence: 71 S. C. 95. When nonsuit should not be granted: 86 S. C. 300, 379; 39 S. C. 514; 61 S. C. 404; 87 S. C. 324; 52 S. C. 323; 33 S. C. 427. Allegations necessary in an action under the statute: 65 S. C. 217; 84 S. C. 125; 87 S. C. 324. Case of railroad company at crossings: 63 S. C. 516; 57 S. C. 211; 86 S. C. 392. Not looking and listening: 39 S. C. 514; 63 S. C. 494; 72 S. C. 392;, 76 S. C. 368. Duty of railroad company at common lazv to-give signals: 4 Ency. 910; 72 S. C. 387; 52 S. C. 528; 87 S. C. 324; 82 S. C. 328. Running at a reckless rate of speed is wilfulness: 87 S. C. 324.</p>

<p>Re-fokiuing Deeds. — Under the proof in this case the trial Judge was correct in refusing to set aside the findings of the jury, and in ordering a deed conveying a life estate by omission of the word “heirs” in the habendum and premises, conveying a valuable tract of land for valuable consideration, drawn by a layman, to be re-formed so as to convey a fee simple.</p>

<p>Before Rice, J., Sumter, April, 1912.</p> <p>, Action by Brown & Parler against J. R. Kolb- in court of magistrate W. J. Reese. From Circuit order affirming magistrate judgment, defendant appeals.</p> <p>cites: Requisites of affidavit of removal: 73 S. C. 17; 64 S. C. 373. New demand was necessary: 47 S. 'C. 335; 27 S. C. 240. Attorney’s fees should not he included in verdict: 62' S. C. 489. Acceptance of service by magistrate is sufficient: 58 S. C. 436.</p> <p>cites : Personal service'cannot he made by mail: 52 S. C. 528; 32 Cyc. 457; 74 S. C. 27.</p>

Petition in the original jurisdiction of this Court by W. Banks Dove for an injunction against the trustees of school district No. 13 of Richland county, the county auditor and treasurer of Richland county and the township assessors of Columbia township- Upper township and Eau Claire.

<p>Petition in the original jurisdiction of this Court by The Mutual Benefit Life Insurance Commissioner for writ of mandamus against Fitz H. McMaster, Insurance Commissioner.</p>

<p>1. Recording Bonds. — Under the amendment of 26 Stats. 83, to section 948, of Code of 1902, a bond executed in a foreign State by a foreign corporation and probated by a foreign notary under his official seal may be recorded in this State.</p> <p>2. Evidence — Bonds.—Under .the amendment 23 Stats. 1073, to section 2897, Code of 1902, original bonds issued by a foreign' corporation may be put in evidence on proper notice and their production is ‘prima facie evidence of their execution.</p> <p>3. Harmless Error. — Erroneously adding into the amount for which a verdict is directed small sums is harmless error, where the amount for which the verdict is directed is much less than the plaintiff is entitled to.</p> <p>4. County Warrants — Supervisor—Sureties.—Drawing warrants on county funds by a county supervisor and his hoard on claims not properly itemized and verified, is an illegal disbursement of public funds, for which loss to the county, he and his sureties are liable.</p> <p>5. Ibid. — Salary.—A warrant drawn by a board of commissioners for the salary of their clerk in excess of the amount provided by statute is an illegal disbursement of public funds.</p> <p>6. Officers — Negligence—Misfeasance.—The failure of a public officer to obey the positive mandate of the law is negligence per se and misfeasance in office.</p> <p>7. Ibid. — Presumption—Proximate Cause. — Where a public officer pays out public funds without compliance with a mandatory statute, the law presumes his act is the direct cause of the loss to the county.</p> <p>S: County Warrants. — A oouNty supervisor and his sureties are liable for warrants used-by his clerk in paying claims not properly itemized and verified, which were signed in blank and left with the clerk, as his negligence was at least a concurring cause of the loss originated by him.</p> <p>9.Ibid. — Ibid.—The law does not require the county supervisor to draw the body of a county warrant by his own hand, but it is sufficient if drawn by another, if he sees that it is based on a claim properly itemized and verified and approved by the board. This latter duty he cannot delegate except at his peril and that of his sureties.</p> <p>10. Ibid. — Evidence.—A claim against a county not itemized and verified according to law is not legal evidence that the county has received for the money paid out on it any benefit, either directly or inferentially, hut payment of such claims raises a presumption of loss.</p> <p>11. Expert Witness. — The preliminary question as to whether a witness should be allowed to testify as an expert must necessarily be left to the discretion of the trial Judge.</p>

<p>Before Gage, J., Laurens, November term, 1911.</p> <p>Action by W. R. Osborne against A. P. Fuller. Defendant appeals.</p> <p>cites: Plea of usury: 37 Ency. 1043, 1046. When creditor may apply payments and not be usury: 68 S. C. 115; 77 S. C. 141; 3 McC. 173; 30 S. C. 134; 74 S. C. 371. Expenses of making loan not to be included: 37 Ency. 1013; 18 Blatchf. 507; 83 S. C. 534; 39 Cyc. 983. Nor commissions for selling goods: 33 S. C. 367; 11 Barb. 80. Action should have been for accounting under mortgage on crop: 30 S. C. 514, 17; 34 S. C. 169; 49 S. C. 433; 43 S. C. 187; 47 S. C. 143. To make out usury there must have been a contract and receipt of usurious interest with corrupt intent: 39 Cyc. 947, 959. The 20 per cent, was only the means for fixing the'price of the goods in the fall: 32 S. C. 594; 27 L. R. A. 560; 39 Cyc. 928; 1 Blachf. 115. Illegal charge in one item does not destroy legal charge in another: 39 Cyc. 990.</p>

<p>Before Gage, J., Lancaster, June, 1910.</p> <p>Action by Emma E. Williams against Charles D. Jones and Leonard V. Amerman, as receivers of the Haile Gold Mining Company. Defendants appeal. The following statement and the dissenting opinion give the facts of the case:</p> <p>“This action of Emma E. Williams, plaintiff, against Chas. D. Jones and Leonard Amerman, as receivers of the Haile Gold Mining Company, defendants, was commenced by service of summons and complaint on the day of May, 1910, at which time also was served upon the defendants an order of his Honor, Geo. W. Gage, dated April 30, 1910, requiring the defendants to. show cause before him why they should not be perpetually enjoined, as receivers of the said gold mining company, ‘from operating and discharging acidulated or chlorinated water, or other harmful substances, into the waters of the Mine Branch and waters of Little Lynch Creek, * * * and from trespassing and damages to the plaintiff, and to abate the nuisance found to exist in the case of Emma E. Williams, plaintiff, against Haile Gold Mining Company, defendant.’ Accompanying the complaint and order were exhibits, consisting of the pleadings and judgments of the Circuit and Supreme Courts in the case of Emma E. Williams, plaintiff, against the Haile Gold Mining Company, defendant, which had been tried at the fall term of the Circuit Court for Kershaw county, 1908.</p> <p>“The respondents, Jones and Amerman, receivers, in their return to the rule to show cause, set up for cause that the complaint and exhibits thereto attached showed, upon their face, that the plaintiff’s rights, in respect to the matters therein alleged, had been fully adjudicated and determined in the previous case of Emma E. Williams against Haile Gold Mining Company, above referred to, as also the extent of the remedy to which the plaintiff was entitled; and that the receivers, being in privity with the defendant in the preceding suit, having been appointed subsequent to the judgment therein, were amenable to no new action for the same causes complained of in said previous action, but only, to the administrative process of the Court for enforcing the remedy already granted to the plaintiff.</p> <p>“The respondents further set up that application was then pending before his Honor, Judge Prince, in the said preceding case of Williams against Haile Gold Mining Company, for an administrative order restraining the defendants in conformity with the terms of the decree of the Supreme Court therein.</p> <p>“Pending the hearing of this return Judge Prince filed an order of injunction in the case of Emma E. Williams against Haile Gold'Mining Company.</p> <p>“Judge Gage, in passing upon the return to the rule to show cause in the case at bar, overruled the defendants’ return, expressing, however, serious doubt about the plaintiff’s right to maintain this action and requiring the plaintiff to give bond. ■ The defendants have appealed to this Court upon exceptions, which are, in substance, a reassertion of the grounds taken by the defendants in their return to the rule to show cause.</p> <p>“The action of Emma E. Williams against Haile Gold Mining Company was for recovery of damages for injury to defendant’s land, alleged to have been caused by the discharge of mineral and chemical substances into the waters t>f the Mine Branch by the defendant in the course of its mining operations. The present action, according to the plaintiff’s contention, is substantially and practically for the same cause against defendants, who are in privity with the defendant in the preceding suit, and there is apparent from the records a virtual identity between the causes of action in the two cases. The defendants contend that res judicata being obviously apparent on the face of the pleadings and the record, and the plaintiff having a full remedy through process of the- Court in the preceding suit, has no cause of action in the case at bar, nor any right to process therein.”</p> <p>cite: Application for permanent injunction should not be heard at chambers: 9 S. C. 303; 1 DeS. Eq. 137. Res judicata: 5 Rich. Eq. 531; 38 S. C. 138; 34 Ency. 746-780.</p> <p>cites: Circuit Judge at chambers could not sustain a plea of res judicata: 38 S. C. 301; 19 S. C. 394; 85 S. C. 345; 53 S. C. 106; 86 S. C. 395.</p>

<p>Before Gage, J., Charleston, June term, 1911.</p> <p>Action by William Brown and Rosa Brown against Western Union Telegraph Co. Defendant appeals on the following exceptions:</p> <p>I. “That his Honor, the presiding Judge, erred in overruling defendant’s objection to and admitting the following testimony:</p> <p>“ ‘When you got to Summerville what did you find? She was dead and buried. Was that or not the first time you knew she was dead? Yes, sir; that was the first time. When was it you came to Summerville — how long after the burial ? The second day; she died on the 22d, and I got the letter on the 24th. She died Wednesday and I got the letter on Friday. Then you came? Yes, sir. Rosa, when did you get this letter? On the 24th. When you got that letter what did you do? I began to pack my trunk. To come on ? Yes, sir. Did you come immediately, in response to that letter? Yes, sir. What was the date of the letter? That letter was dated 22d and I got it on the 24th. When you got to Summerville when did you first hear of the death of your sister? I did not hear until I got home in the house.’</p> <p>“Whereas, it is respectfully submitted that the said testimony was immaterial and irrelevant, as defendant was only liable in damages (if liable at all) for mental anguish caused to the plaintiff by being deprived of seeing her dead sister and of attending her funeral and burial, and the defendant could not be held liable for any mental anguish of the plaintiff caused by the death of her sister and knowledge thereof, and that where, how and when, she acquired such knowledge is irrelevant and immaterial and is entirely apart and disconnected from the message that was sent, the failure to deliver which, prevented her being present at her sister’s funeral and seeing her dead body, and for which alone she could be entitled to recover damages.</p> <p>“That this result could not have been contemplated from the wording of the message, and no notice thereof to the company was given.</p> <p>II. “Because the Court erred in not granting defendant’s motion for a nonsuit at the close of the plaintiff’s case, on the ground that there was not only no allegation in the complaint, but no testimony whatsoever, that plaintiff paid or promised to pay, for the transmission of the message or that the sender paid or promised to pay therefor, or that there was any consideration to the defendant.</p> <p>III. “Because the Court below erred in refusing to grant the defendant’s motion for a nonsuit made at the close of the plaintiff’s case as to the cause of action based on negligent tort (only) on the ground that it affirmatively appeared from the plaintiff’s own case that the message sued on was an interstate message and that it did not appear that there was any default or breach of duty with regard thereto on the part of the defendant within the territorial limits of the State of South Carolina, and the defendant maintains that the statute entitled ‘An act to allow damages against telegraph companies doing business in this State for mental anguish or suffering even in the absence of bodily injury caused by negligence in receiving, transmitting and delivering messages/ approved February, 1901 (Stat. S. C., vol. 23, p. 748), which act is the foundation of the cause of action based on negligent tort, is, if construed as applicable to the message in this case, unconstitutional and void because in contravention of the Federal Constitution, to wit:</p> <p>“(a) Article I, section 8, subdivision 3, of the Constitution of the United States, conferring on Congress power to regulate commerce among the several States, and</p> <p>“(b) Article I, section 8, subdivision 17, of the Constitution of the United States, conferring power on Congress to exercise exclusive legislation in all cases whatsoever over the District of Columbia, and</p> <p>“(c) That part of the fourteenth amendment to the Constitution of the United States which provides that no State shall deny to any person within its jurisdiction the equal protection of the laws.</p> <p>IV. “That the Court below erred in refusing the defendant’s motion for a nonsuit or a direction of verdict in its favor at the close of the whole case as to the cause of action based on negligent tort (only) on the grounds set out in defendant’s motion for a nonsuit at the close of the plaintiff’s case and on the additional ground that it then affirmatively appeared that there was no default or negligence within the State of South Carolina, and that whatever default or negligence there was on the part of the defendant occurred without the State of South Carolina and within the District of Columbia and therefore, as the message sued on was an interstate message, the defendant maintains that the statute entitled, ‘An act to allow damages against telegraph companies doing business in this State for mental anguish or suffering even in the absence of bodily injury caused by negligence in receiving, transmitting and delivering messages,’ approved 20th February, 1901. (Stat. S. C., vol. 23, p. 748), which act is the foundation of the cause of action based on negligent tort, is, if construed as applicable to the message in this case, unconstitutional and void in contravention of three parts of the Federal Constitution, to wit:</p> <p>“(a) Article I, section 8, subdivision 3, of the Constitution of the United States, conferring on Congress power to regulate commerce among the several States, and</p> <p>“(b) Article I, section 8, subdivision 17, of the Constitution of the United States, conferring power on Congress to exercise exclusive legislation in all cases whatsoever over the District of Columbia, and</p> <p>“(c) That part of the fourteenth amendment to the Constitution of the United States which provides that no State shall deny to any person within its jurisdiction the equal protection of the laws.</p> <p>V. “That his Honor, the presiding Judge, erred in refusing to charge the eleventh request of the defendant, which was as follows: ‘That the measure of damages is governed in this case by the law of the District of Columbia, where the tort was committed, and under the law of that State any mental anguish which does not proceed from, or accompany, physical injury, is not an element of damage and cannot be recovered. The jury is, therefore, instructed that the plaintiff cannot recover damages in this case for the mental anguish she claims to have suffered in not seeing her dead sister’s face and attending her funeral.’</p> <p>VI. “That his Plonor, the presiding Judge, erred in refusing to charge the request of the defendant numbered ‘11a,’ which was as follows: ‘If the jury find from the evidence that the sole default of the defendant occurred in the District of Columbia and that there was no breach of duty anywhere else, then the jury are instructed to bring in a verdict for the defendant as far as compensatory damages for mental anguish are concerned.’</p> <p>VII. “That his Honor, the presiding Jqdge, erred in refusing to charge the fourteenth request of the defendant, which was as follows: ‘Unless the plaintiffs have proved by a preponderance of the evidence that there was some default or breach of duty on the part of the defendant within the territorial limits of the State of South Carolina, there can be no recovery of damages for mental anguish, because the statute allowing such damages, if construed as authorizing recovery therefor, where the plaintiff has not proved a default within the State, would be unconstitutional and void as in contravention of article I, section 8, subdivision 3, of the Federal Constitution, conferring on Congress power to regulate commerce among the several States ; and, also, of article I, section 8, subdivision 17 thereof, conferring power on Congress to exercise exclusive legislation over the District of Columbia.’</p> <p>VIII. “That his Honor, the presiding Judge, erred in refusing to charge the fifteenth request of the defendant, which was as follows: Tf the jury find from the testimony that there has been no default or breach of duty in the State of South Carolina, and that such default or breach occurred without the State of South Carolina and in the District of Columbia, there can be no recovery of damages for mental anguish, for the mental anguish statutes upon which such recovery depends, if construed as authorizing a recovery under such circumstances, would be unconstitutional and void as in contravention of article I, section 8, subdivision 3, of the Constitution of the United States, conferring on Congress power to regulate commerce among the several States, and also of article I, section 8, subdivision 17 thereof, conferring power on Congress to exercise exclusive legislation in all cases whatsoever over the District of Columbia.’</p> <p>IX. “That his Honor, the presiding Judge, erred in refusing to charge the sixteenth request of the defendant, which was as follows: Tf the jury find that there was no default or breach of duty within this State, there can be no recovery of damages for mental anguish (as the mental anguish statute, if construed as applying to and authorizing recovery of damages for mental anguish) under the circumstances of this case would be unconstitutional and void as in contravention of that part of the fourteenth amendment to the Constitution of the United States which provides that no State shall deny to any person within its jurisdiction the equal protection of the laws.’</p> <p>X. “That his Honor, the presiding Judge, erred in charging the jury that the defendant telegraph company is liable for what it did under the laws of the State of South Carolina, and its right and remedies are under the laws of that State, irrespective of where the act of negligence may have occurred.”</p> <p>cite: No recovery for mental anguish for delict in Washington: 79 S. C. 160; 122 U. S. 347; 162 U. S. 650; 96 U. S. 1; 105 U. S. 460; 122 U. S. 347; 218 U. S. 406; 220 U. S. 364; 214 U. S. 274.</p> <p>cite: Not necessary to show delay occurred in this State: 79 S. C. 160. Laws of District of Columbia have nothing to do with rights of the parties in this case: 86 S. C. 219; 88 S. C. 518.</p>

<p>Before Ríos, J., Clarendon, February, 1913.</p> <p>Action by Ferdinand Daughty against Northwestern R.ailroad Co. Plaintiff appeals.</p> <p>cites: Reception by 1defendant of part of shipment raises presumption of receipt of whole: 76 S. C. 308; 77 S. C. 317. Connecting carriers are agents of each other: 78 S. C. 42; 24 Stat. 1; 89 S. C. 415. Appeal lies from order granting new trial: 35 S. C. 569; 77 S. C. 320.</p> <p>Messrs. Purdy & O’Bryan cite: This appeal will not be considered by this Court: 35 S. C. 569; 83 S. C. 33.</p>

Before Wilson, J., Richland, December term, 1911. Action by Piano Cable Co. against John T. Duncan. Plaintiff appeals. cites: Refusal to open default is an abuse of discretion: 56 S. C. 468. Judgment should not have been given on the pleadings for amount claimed in the counterclaim: 54 S. C. 404; Bryant Code PI. 257; 35 Wis. 618; Póm. R. & R., sec..744; 142 App. Div. 431; 90 S. C. 128; 72 S. C. 397; 89 S: C. 483.

<p>Petition in the original jurisdiction of this Court by George J. Douglass for writ of mandamus against the City Council of Greenville.</p> <p>cites: Ordinance is not within legislative grant: 23 S. C. 523; 35 S. C. 14; 41 Am. St. R. 835; Dillon, secs. 319, 322, 327; 78 Ill. 405; 1 Col. App. 157; 123 Am. St. R. 33; 32 Am. R. 138; 44 Am. R. 10. It is unreasonable, arbitrary, capricious, partial, oppressive: 28 Cyc. 368; 48 S. C. 570; 118 U. S. 356; 28 Cyc. 350; 154 U. S. 362. It is unconstitutional: 118 U. S. 369; 114 Am. St. R. 804; 119 Id. 845; 78 Id. 526; 41 Id. 230; 123 Id. 33 and note; 117 N. W. 1012; 118 U. S. 356; 194 U. S. 371; 199 U. S. 562; 50 Am. R. 636.</p> <p>cites: General power to regulate stables: McQuillin Mun. Or., sec. 450; 19 Ency. 430; Dillon, sec. 665; 35 L. R. A. 84; 10 Pac. 327; 13 Pac. 170; 16 Wall. 36; 38 L. R. A. 640. City has the police power: 53 S. C. 277; sec. 1999 Code 1902; 33 S. C. 64. The power has been reasonably exercised: 4 Strob. 306; 48 S. C. 583; 76 S. C. 12; 11 D. R. A. 446. Ordinance violates no constitutional provision: 113 U. S. 27; 118 U. S. 356; 177 U. S. 183; 194 U. S. 361; 12 Am. R. 694; 22 At. 266; 66 S. C. 202. That petitioner has obtained a permit and done ■work thereunder does not affect it: 47 Am. R. 326; Dillon, sec. 405; 2 Pars. Con. 674; 1 Hump. 240; 72 Pac. 970; 113 U. S. 703; 59 Am. R. 694; 26 Gratt. 83. Court will not assume discrimination: 11 D. R. A. 448; 27 L. R. A. 530; 2 McQuillin, sec. 703; Cooley Con. Lim. 221.</p> <p>See Appendix for citations.</p>

<p>Before Ernest Gary, J., October, 1910, and Gage, J., March, 1911, Anderson.</p> <p>Action by E. H. Welborn against W. W. Cobb and J. W. Dickson. Dickson appeals.</p> <p>Mr. Rice cites: As to abatement: 69 S. C. 263; 4 McC. 434; 35 S. C. 404; 6 Rich. 37; 2 Speer 61; 23 S. C. 208.</p> <p>Mr. Bonham cites: Issue of failure of consideration should have been tried by jury: 17 S. C. 32; 44 S. C. 120; 80 S. C. 263; 89 S. C. 393; Harp. 290; 70 S. C. 283.</p> <p>cite: Reduction for material misrepresentation or mistake by seller: 2 Rich. 130; 2 Hill 657; 20 Ency. 876; Rice Ch. 55; Harp. 290; 4 McC. 434; Rice Ch. 57; Wiltsie Eorc. Mtgs., secs. 364-5.</p>

Four actions in this Court by the Attorney General, J. Fraser Eyon, against: (1) J. M. Bowden and A. H. Kirby; (2) S. S. Tiner and D. T. Gossett; (3) W. R. Tanner and E. Potter; (4) T. O. Fowler and W, C. Harrison. These cases were referred to the Court en banc by order of this Court on June 7, 1912'. Mr. DeBruhl cites-: 89 S. C. 113; 90 S. C. 355; 50 Miss. 607; 307 Am. 934; 56 N. W. 142; 2 M'd. 354; 9 Pa. Ch. 506.

Four actions in the original jurisdiction of this Court by the Attorney General against (1) S. E. Whitten, (2) W. E. Green, (3) W. T. Chamblee, (4) J. A. Young. The cases were sent to Court en banc by this Court on June 7, 1913. Mr. DeBruhl argued this with preceding case.

Before DeVore, J., Chesterfield, November term, 1911. Two actions (1) S. O. Goodale against J. W. Page and Bennettsville and Cheraw Railroad Company, and (3) Gillespie Bros, against same. Defendants appeal. cite: Necessary allegations in quantum meruit suits: 3 Strob. 334; 13 Rich. 176; 48 S. C. 307; 33 S. C. 467; 19 S. C. 419.

<p>Before Shipp, J., Marion, February and March, 1912.</p> <p>Action by J. W. Jones against Atlantic Coast Lumber Corporation and North and South Carolina Railway Company. Defendant, Atlantic Coast Lumber Corporation, appeals.</p> <p>Messrs. Willcox & Willcox cite: As to granting temporary injunctions: 69 S. C. 156; 67 S. C. 84; 87 S. C. 566; 90 S. C. 150. An allegation of reasonable time should be made more definite: 65 S. C. 284; 28 S. C. 396; 33 S. C. 216; 34 S. C. 67.</p> <p>cite: Pacts and circumstances should be alleged to ascertain reasonable time: 89 S. C. 328; 90 S. C. 363. The reasonable time should not be added to the time allowed to cut: 90 S. C. 363, 176; 83 Am. St. R. 661;.55 L. R. A. 513; 119 Am. St. R. 709. What is a reasonable time is a question of fact: 89 S. C. 142; 10 Rich. 419; 2 Rich. 67; 52 S. C. 563; 78 S. C. 73; 70 S. E. 672; note 12 Am. & Eng. Ann. Cas. 919.</p>

<p>Before DeVore, J., Dillon, October term, 1910.</p> <p>Action by Pee Dee Naval Stores Company against Robert P. Hamer, Jr., D. A. McCallum and Janie B. Hamer. Plaintiff appeals.</p> <p>cite: Tax officers in levy and sale are presumed to act lawfully: 22 S. C. 43; 59 S. C. 498; Speer. 80; 14 S. C. 454; 52 S. C. 516. Courts will take judicial notice that United States purchased Florida from Spain: 81 S. C. 30. /urisdiction of Co%irts presumed: 52 S. C. 516. Lien is an incumbrance: 21 S. C. 210; 46 S. C. 256. Ouster: 29 S. C. 1540; 6 W. & P. 5114-5; 27 S. C. 198; 79 S. C. 216; 81 S. C. 380; 5 Am. Dec. 281; 3 Id. 246. Common law presiimed to prevail in Florida: 81 S. C. 24. Amount of recovery: 60 S. C. 526; 43 S. C. 29.</p> <p>cite: Incumbrance, without eviction, does not warrant recovery: 1 Rich. Eq. 407; 12 S. C. 64; 22 S. C. 185; 32 S. C. 195; 81 S. C. 380.</p>

<p>Before Copes, J., Hampton, Winter term, 1912.</p> <p>Indictment against John Henry Sanders for assault with intent to ravish. Defendant appeals.</p>

<p>Before Prince, J., Plampton, June term, 1911.</p> <p>Action by W. E. Harter against Bank of Brunson. Defendant appeals.</p> <p>Mr. deLoach cites: Burden is not on bank to shotv absence of negligence: 90 Tenn. 227; 7-La. 477; 13 La. 114; 106 Ala. 387; 73 La. 649; 131 Pa. 101. Title to drafts to be collected remains in depositor: 77 N. W. 796; 75 N. W. 228. Under agreement of deposit draft subject to counter-charge: 52 S. W. 47; 118 Cal. 600.</p> <p>cites: Collecting bank is agent of receiving bank: Century Dig. 606; Decennial Dig., sec. 171; Key Number Series Am. Dig., sec. 171; 3 Hill. 77. Drawer relieved of liability by failure to give notice of protest: Fed. Cas. 4810; 26 U. S. 25; 52 Miss. 677. Solvency is presumed: 44 How. Pr. 168; 44 S. C. 227.</p>

Before Spain, J., Richland, April term, 1912. Action by Nannie E. Hiller against Bank of Columbia'. Defendant appeals. cites: Bank may apply deposits to payment of depositor’s debts due: 3 Ency. 835; 69 S. C. 383; 4 Dud. 524'; 124 Fed. 61; 6 Cent. Dig. 1244; 192 U. S. 145; 111 U. S. 125. Party beneficially interested: 104 U. S. 54; 26 S. C. 548. It is a misdemeanor to draw check without funds: 77 U. S. 647; 26 Stat. 18.

Before Copes, J., Hampton, February term, 1912. Action by Mamie Wall against Western Union Telegraph Co. Plaintiff appeals. cite: Unreasonable delay raises presumption of negligence: 89 S. C. 190. Nonsuit should not be granted zvhere there is any evidence tending to show damages by negligence or wilfulness: 72 S. C. 256; 73 S. C. 430; 89 S. C. 567. Messrs.

Before Watts, J., York, Fall term, 1911. Action by James M. Gamble • against Metropolitan Life Insurance Co. Defendant appeals. cite: As to alleging fraud: 75 S. C. 338; 65 S. C. 184; 9 Ency. P. & P. 686. If answers to questions are false policy is void: 28 C. C. A. 370; 28 S. C. 437; 10 L. R. A. 666; 22 L. R. A. 325; 47 S.-E. 940; 65 Am. St. R. 887; 130 Id. 356; 62 L. R. A. 774; 10 Am. St. R. 240; 53 L. R. A. 193; 25 Am.

Petition in the original jurisdiction of this Court by J. Fraser Lyon, Attorney General, for removal of B. J. Rhame from office of Bank Examiner. H. W. Fraser, the appointee of the Governor, was made a party on his motion. No argument furnished Reporter. No argument furnished Reporter. Mr. Rembert cites: The constitutional authority of the executive: Con. U. S., art. II, secs. 1, 2; Con., art. IV, secs. 1, 13, 17.

Petition in the original jurisdiction of this Court by B. L. McDowell for writ of mandamus against T. C. Burnett, county supervisor, and P. Graham Payne, county treasurer. W. H. Kerr was made a party by order of the Court. The case was sent to the Court en banc by order Supreme Court June 7, 1912. cite: Term of office of magistrate: Con., art. V, sec. 20; Code 1902, 982, 983. ' Is it a legislative or a constitutional office? Art. V, sec. 20, 21, 23 of Con.; 44 S. C. 493.

Petition by respondents before Mr. Justice Woods at chambers in James S. Kuhn and William S. Kuhn against Electric Manufacturing añd Power Co., Spartanburg Railway, Gas and- Electric Co.i and R. M. McCown, as Secretary of State, of whom the plaintiffs are appellants.

Before Wilson, J., Richland, November term, 1911. Action by Amanda Irby against Southern Railway Company and W. M. Davis. Defendants appeal. cites: As to admission of city ordinances: 62 S. C. 327; 72 S. C. .3; 47 S. C. 28. One on track is presumed to get out of way of lever car: 70 S. C. 194.

<p>Before Ernest Gary, J., Newberry, Summer term, 1912.</p> <p>Indictment against Sam Boozer and John C. Hipp. Boozer appeals.</p>

Before Gage, J., Charleston, September, 1911. Action by H. G. Beland against J. B. Morrison. The Circuit decree is: “The object of the action is to declare an instrument of writing to be a mortgage, which on its face appears to be a deed absolute.

<p>Before Watts, J., Fairfield, November term, 1911.</p> <p>Action by Alice B. Walker et al. against Sarah W. Des-Portes et al. The Circuit decree is :</p> <p>“Osmond Woodward died in 1863, leaving of force a will, which was admitted to probate by the then ordinary of Fairfield district, on 4th September, 1863. By the fourth clause of his will, the said testator bequested and devised as follows:</p> <p>“ ‘Item 4. I will and direct that all' the rest and residue and remainder of my estate, both real and personal, of every kind and description, including all the land and all the negro slaves and their increase, which may be in the possession of my children at the time of my decease, as a loan from me, be divided by my executors into five equal parts or portions; one of which I give, devise and bequeath to each of my daughters, namely, Jemima Harrison, Sara Owens, Amanda Heath, Rebecca Buchanan, and Regina Woodward, for and during the term of her natural life, to and for her sole and separate use, benefit and behoof, and in nowise to be subject or liable to the debts, contracts, or incumbrances of any husband, and at her death to the issue of her body who may then be living. In case either of my said daughters shall die without leaving issue of her body then living, all the property above given and devised or bequeathed to her (except as hereinafter particularly specified), shall be equally divided among her surviving sisters, to and for their sole and separate use, benefit, and behoof respectively, for and during the term of their natural lives, respectively, precisely in all respects, as the original share or portion above devised and bequeathed to them respectively, and at their several and respective deaths to the issue of their bodies who may be then living. In all contingencies which may arise under this will, the issue of a deceased daughter, if any such, shall represent the parent and take the share which the parent would have been entitled to if living. In case either of my daughters shall die in my lifetime, without leaving issue living at the time of my decease, the share or portion above devised and bequeathed to her shall fall into the general residue of my estate, and augment ratably the shares or portions of my surviving children, the number of shares or portions in that case being less.’</p> <p>“The qualified executors, as directed by the will, divided the real estate among the five daughters of the testator, and the tract of land described in the complaint was allotted to Jemima Harrison, and this daughter died some time during the year 1865 without leaving issue then living. On the tenth of September, .1869, John R. Cook and his wife, Sara S. Cook (the same person called Sarah Owens in the will), filed their bill in the court of equity against Lucy A. Mobley (called Amanda Heath in the will, and who afterwards became Lucy A. Keller by marriage with Theodore Keller), Robert A. Buchanan and his wife, Rebecca, and Regina Gadsden (the same person called Regina Woodward in said will for partition of the tract of land, which had been assigned to said Jemima Harrison). Only the then surviving daughters of the testator were then made parties to the said cause. None of the contingent remaindermen then in esse and within the jurisdiction of the Court were, in any manner whatsoever, made parties. By decree of the Court made in said cause, after return made by commissioners in partition recommending a sale because an actual partition was found impracticable, the said land was sold by the sheriff, and purchased by Lucy A. Mobley, who received the sheriff’s deed, but her mortgage for the purchase money or the credit portion thereof was foreclosed, and the land bought by S. B. Clowney, and the title passed through various deeds to U. G. DesPortes. Upon the death of Regina Gadsden, one of testator’s daughters, her issue, consisting of her two sons, John C. Gadsden and P. M. Gadsden, recovered an undivided one-fourth interest in said tract of land from said U. G. DesPortes (Gadsden v. DesPortes, 39 S. C. 131), which one-fourth interest was conveyed by the plaintiffs in that case to R. S. DesPortes, who also acquired the title of said U. G. DesPortes to the remaining three-fourths interest by purchase from J. Q. Davis, assignee of said U. G. DesPortes and the defendant, Sara W. DesPortes, has acquired through the deed of his executrix and devisee, the title of said R. S. DesPortes, now deceased, and is in possession of the said tract of land under said deed and under a deed from the clerk of court to a portion thereof sold under foreclosure proceedings against a grantee of said R. S. Des-Portes for the purchase money. All the life-tenants, daughters of the testator, are now dead. Sara Owens, who became Sara S. Cook by marriage, died May 38, 1907. Rebecca Buchanan died June 31, 1908. Lucy A. Keller, called Amanda Heath in said will, died February 33, 1909. Each of these daughters left issue living at the time of their respective deaths, and such. issue, including said Sara W. DesPortes, are parties to this action, which involves the title to an undivided three-fourths interest in said tract of land. Trial by jury was expressly waived, and an order of reference to take the testimony was made by consent of all parties, and the cause came on to be heard by me at the September term, 1911. At the hearing it was conceded by counsel for Sara DesPortes that the issue of Lucy A. Keller were entitled to recover an undivided one-fourth interest in said tract of land.</p> <p>“On the ninth of September, 1869, the same day the bill in the cause entitled John R. Cook and wife v. Lucy A. Moblejr et als. was filed, a bill in equity was filed by said John R. Cook and his wife, Sarah, v. D. F. Booten and his wife, Jesse, daughter of said Sarah, setting forth that Sarah S. Cook had removed to Georgia, etc., and asking for a sale of the lands which had been allotted to her by the executors in the division of the lands of the estate of Osmond Woodward, deceased, on the 11th December, 1863, for change of investment, and that the proceeds of sale be held by some suitable trustee, to be appointed by said Court, subject to the same conditions and limitations contained in the will of Osmond Woodward, deceased. The report on sales shows that the lands constituting the original share of said Sarah S. Cook brought $8,616.75, and the fees and the costs amounted to $678.71.</p> <p>“By an order of the Court of Common Pleas, dated 18th March, 1871, entitled eBx parte Sallie S. Cook,’ and purporting to have been made upon her petition, Thomas W. Woodward was appointed 'trustee of the separate estate of the petitioner, Sallie S. Cook, upon his entering into a bond payable to the clerk of this Court with at least two good and sufficient sureties in the penal sum of sixteen thousand dollars, conditioned for the faithful discharge of his duties as such trustee, according to the terms and limitations contained in the will of Osmond Woodward, deceased.’ It is contended by counsel for the Cook issue that this order was made in pursuance of the bill and decree in John R. Cook and wife v. D. P. Booten and wife; in other words, that Thomas W. Woodward was appointed trustee in that proceeding, which was expressly for change of investment. While that may be true, from the view I take I do not consider it a matter of importance. Thomas W. Woodward appears to have received $3,250.00 as trustee for Mrs. Cook from the proceeds of sale of 'the Harrison tract,’ as well as the net proceeds of the sales of lands constituting the original share of Sarah S. Cook, sold in the cause of John R. Cook and wife v. D. F. Booten and wife. A deed to certain lands in the State of Georgia to Thomas W. Woodward, trustee, but which makes no reference to the will of Osmond Woodward, deceased, was offered in evidence by the defendant, Sara W. DesPortes. The expressed consideration for this was $6,682.50. The issue of said Sarah S. Cook are now in possession of this land in Georgia. The testimony of Thomas W. Woodward, included in the record of the case of Gadsden v. DesPortes, was offered in evidence on behalf of Sara W. DesPortes over the objection of counsel for the Cook branch, and I find from that testimony that the money paid Woodward, trustee, twenty-two hundred and fifty dollars from the sale of the Harrison tract, entered as a part of the consideration for the Georgia lands.</p> <p>“It also appears that R. A. Buchanan received for his wife, Rebecca, under the order of Court, one thousand dollars from the proceeds of sale of the ‘Harrison tract,’ and that this amount was used in repairing a dwelling on a lot in Winnsboro held by Mrs. Buchanan under the terms and limitations of her father’s will.</p> <p>“While the contingent remaindermen then in esse and within the jurisdiction of the Court were not made parties to the case of John R. Cook and wife against Lucy A. Mobley and others, and the remaindermen are not bound by the sale made in said cause, and while the purchaser at the sale thereunder, and those claiming under the purchaser, could claim no greater estate than that of the life tenants, yet equity will require the remaindermen to account for the proceeds of sale used for their benefit. I find, therefore, that the issue of Lucy A. Keller, deceased, living at the time of her death, the issue of Rebecca A. Buchanan living at the time of her death, and the issue of Sara S. Cook living at the time of her death are entitled to recover from the defendant, Sara W. DesPortes, who is in the possession of the land, receiving the rents and the profits therefrom, an undivided three-fourths interest therein less the share of John C. Buchanan as hereinafter more particularly stated, but the issue of Rebecca Buchanan, deceased, must account to Sara W. DesPortes for one thousand dollars with interest thereon from 21st June, 1908, the same to be deducted from their share of the proceeds of sale hereinafter ordered; and that the issue of Sarah S. Cook, deceased, must account for twenty-two hundred and fifty dollars with interest thereon from the 28th May, 1907.</p> <p>“Sara W. DesPortes claims betterments and improvements. In order to avoid a separate action for improvements made by her predecessors and grantors, counsel for all parties, at the hearing, agreed that in the determination of that question, the Court might take into consideration the testimony relating not only to such improvements as have been made by Sara W. DesPortes, but also to such as may have been made by her predecessors and grantors; the objection that a claim for improvements by previous owners could not be made in this action, having been withdrawn. After a careful consideration of the testimony and full arguments on that issue as well as on other questions, I am well satisfied that the betterments and improvements, not only those made by Sara W. DesPortes, but those made by her predecessors and grantors and any increase in rents and profits by reason thereof, are fully offset by the waste.</p> <p>“Of the net rents and profits received by Sara W. Des-Portes I find the issue of Sarah S. Cook, deceased, are entitled for the year 1907, according to the provisions of sections 2408 and 2409, Code 1902, to $143.74, with interest thereon from the first day of January, 1908; to $293.10 for the year 1908 with interest thereon from the first day of January, 1909; to $330.40, with interest thereon from the first day of January, 1910, for the year 1909; to $310.74, with interest thereon from the first day of January, 1911, for the year 1910, and the defendant, Sara W. DesPortes, must account to such issue for one-forth of the net rents and profits received or to be received by her for the present year.</p> <p>“The issue of Lucy A. Keller, deceased, I find are entitled to recover from the defendant, Sara W. DesPortes, on account of rents and'profits received by her, $275.34, for the year 1909, with interest thereon from the first day of January, 1910; to $310.74 for the year 1910, with interest thereon from the first day of January, 1911, and to one-fourth of the rents and profits that Sara W. DesPortes may receive for the year 1911.</p> <p>“I find the issue of Rebecca Buchanan, deceased, other than John C. Buchanan, who has assigned the interest he would have been entitled to as a part or one of such issue to Sara W. DesPortes, are entitled to $109.92, on account of rents and profits received by Sara W: DesPortes for the year 1908, with interest thereon from the first day of January, 1909; to $247.80 for the year 1909, with interest thereon from the first day of January, 1910; to $233.06 for the year 1910, with interest thereon from the first day of January, 1911, and to three-sixteenths of the rents and profits for the present year that Sara W. DesPortes may have or will receive.</p> <p>“The only remaining question, which is of practical importance more especially to the parties other than Sara W. DesPortes, involves the question who constitute the class wbo are to take at the death of the respective daughters of the testator, and in what proportions they take.</p> <p>“As to the share of Lucy A. Keller, deceased, how that share, including the rents and profits found to be due her issue is to be divided among such issue, who are embraced within the class and in what proportion they take, by the request of counsel for those interested these questions are reserved for the future determination of the Court, so that as among the issue of Lucy A. Keller, deceased, no decision is now made.</p> <p>“The recent case of Rembert v. Vetoe, 89 S'. C. 198, it seems to me, settles the question that those descendants of the respective daughters or life tenants whose parents were living at the time of the falling of the life estates are excluded; in other words, ‘issue’ here is equivalent to heirs of the body.</p> <p>“The issue of Rebecca Buchanan, who are entitled to take and the proportions in which they take, are as follows: Alice B. Walker to an undivided one-sixteenth interest in fee in said tract of land; Robert A. Buchanan’s interest, which is also one-sixteenth, has passed to John C. Buchanan for and during the life of said Robert A. Buchanan, with remainder to said Alice B. Walker, John C. Buchanan and Osmond W. Buchanan, the latter of whom has died intestate, and his widow, Sophie T. Buchanan, and his children, as his heirs at law, are parties to this action; the one-sixteenth interest, which John C. Buchanan would have been entitled to as a part of such issue has been assigned by him to said Sara W. DesPortes. Each of the infant defendants, George T. Buchanan, Margaret A. T. Buchanan, Robert A. Buchanan, Jr., William C. Buchanan, and Osmond Buchanan, children of Osmond W. Buchanan, a predeceased son of said Rebecca Buchanan, deceased, are entitled to an undivided one-eightieth in fee in said tract of land.</p> <p>“The issue of Sarah S. Cook, deceased, entitled to take and the proportions in which they take are the following: Each of the plaintiffs, Minnie Booten, Frederick, William Sinclair Booten, James O. Booten, Bassie M. Booten to an undivided one-sixteenth interest in fee. * * *”</p> <p>From this decree, defendant, Sarah W. DesPortes, appeals.</p> <p>Mr. Ragsdale cites: Receipt by remaindermen of the proceeds of sale made them parties to the cause: 88 S. C. 1; 71 S. C. 87; 18 S. C. 501; 13 S. C. 174; 2 McC. 151; 6 Rich. Eq. 302. Before i8jo not necessary to be made parties: 37 S. C. 345; 25 S. C. 283; 19 S. C. 324; 23 S. C. 503; 39 Cyc. 509; 22 S. C. 323; 80 S. C. 83; 3 Rich. Eq. 1; 66 S. C. 155. Contingent remainderman has no action for waste: 2' McC. 137; Pearson v. Yongue, 25 S. C. —; 1 Wash, on Real Prop. 120; Tiedeman on Real Property, sec. 61; 29 S- C. 279; 30 Ency. 280, 290-1, 242; 39 S. C. 132; 45 S. C. 283. Defendant liable only for rents and profits actually received: 47 S. C. 582; 42 S. C. 529; 32 S. C. 57; 23 S. C. 129; 6 Rich. Eq. 302; 2 Strob. Eq. 157; 1 Strob. Eq. 350. .</p> <p>cites: Receipt of one not a party of his share made him a party: Kleber on Void J. S., sec. 475 ; Freeman on Void J. S. 170, 180; Rov. on Jud. S., sec. 455.</p> <p>Mr. Do%iglass cites: Contingent remaindermen are necessary parties: 3 Rich. Eq. 1; Bail. Eq. 395; 22 S. C. 329, 422; 38 S. C. 1191; 16 S. C. 402. As to waste: 2 Hill’s Ch. 282. Judge may order sale for partition: 36 S. C. 192.</p> <p>cite: Contingent remainder-men are necessary parties: 3 Rich. Eq. 1; Bail. Eq. 395; 22 S. C. 323.</p>

Before SeasE, J., Colleton, November term, 1911. Action by J. B. Pinckney by guardian against' Atlantic Coast Line Railroad Company and Charleston & Western Carolina Railway Company. The motion to direct a verdict was made on the following-grounds : First. “There is no evidence tending to support the allegations of punitive damages, against either defendants. Second. “There is no evidence tending to establish actionable negligence against either defendants.

<p>Before W. B. deToach, Special Judge, Barnwell, October, 1911.</p> <p>Two actions tried together. 1. James S. Spires against the Atlantic Coast Tine Railroad Company; and 2. J. Addie Spires against same defendant. Defendant appeals in both cases.</p> <p>cite: Duty of carrier to protect passenger from injury from fellozv passengers: 93 N. Y. 127; 16 T. R. A. 630; 105 U. S. 252; 140 Mo. 683; Ray. Neg. 133-4; Webb Pollock Torts 45, 46, 47; 47 T. R. A. 123; 53 Miss. 200; 6 Cyc. 602; 5 Ency. 553; 93 Va. 44; 2 A. & E. R. R. Cas. 441; 87 Mo. 417; 32 T. R, A. 794; 67 Miss. 376; 38 T. R. A. 431; 30 S. C. 218; 77 S. C. 436; 74 S. C. 340; 81 S. C. 1; 84 S. C. 15; 78 S. C. 552.</p> <p>cite: Duty of carrier to protect passenger from harm or injury: 77 S. C. 434; 71 S. C. 543; 55 S. C. 393; 84 S. C. 19; 74 S. C. 339; 5 Ency. 558, 553.</p>

Before Memminger, J., Anderson. Action by S. A. Haynes against P. W. Sullivan and Van B. Martin in court of magistrate L. M. Wilson. Prom order on Circuit affirming judgment of magistrate, defendant, Sullivan, appeals. cite: Contributory negligence could not arise in this case: 73 S. C. 500. This Court may review the testimony to determine if there is any evidence to sustain the verdict: 65 S. C. 517; 73 S. C. 83; 91 S. C. 6. oral argument.

Before-, J., Sumter,-. Action by Geo. W. Reardon against Nathan Averbuck. Defendant appeals. cites: Amendment should have been allowed: Code of Proc. 194; 81 S. C. 574. Definition of discretion: 47 S. C. 498. Contract to repair may be separate from lease: 79 S. C. 459; 61 S. C. 166; 65 S. C. 134; 72 S. C. 362, 410. cites: Landlord not bound to repair in absence of contract: 32 S. C. 589.

<p>Before Audrich, J., Richland, May, 1911.</p> <p>Action by B. Visanska against Southern Express Co. Both Parties appeal.</p> <p>cite. An agreed valuation is not unlawful: 112 U. S. 337; 33 E. R. A. 600. Judgment should have been allowed for value of lost articles: 84 S. C. 87.</p> <p>cite: Under-valuation is a violation of the interstate commerce act: 3 Eed. Stat. Ann. 835; 92 N. E. 277. Contract opposed to public policy is void: 69 S. C. 434; 73 S. C. 1; 71 S. C. 150; 40 Am. R. 720; 11 Fed. Cas. 189; 91 Ind. 477; 83 Mass. 435; 48 Am. St. R. 317; 9 Am. R. 30; 17 S. E. 761; 145 U. S. 421; 59 Am. St. R. 636; 90 Am. St. R. 170; 132 Fed. 399; 92 S. W. 866; 102 N. W. 200. This is not an agreed valuation: 82 S. C. 378; 112 U. S. 331.</p>

<p>Before SeasE, J., Colleton, November, 1911.</p> <p>Action by Barnie Dempsey and Mrs. Barnie Dempsey against Western Union Telegraph Company. Defendant appeals.</p> <p>Peurifoy Bros, cite: One cannot recover for damages zvhich he could have prevented by other means of communication: 27 Ency. 1034.</p> <p>cite: That there is no evidence to support a verdict must be first made by motion for nonsuit or to direct a verdict: C. C. Rule 77 75 S. C. 571. The rules of-a telegraph company must be reasonably applied: 71 S. C. 307. Service message must be handled with same diligence as initial message: 81 S. C. 436; 77 S. C. 174; 84 S. C. 7; 74 S. C. 300; 84 S. C. 67, 155; 67 E. R. A. 153; 129 Fed. 318; 16 L. R. A. (N. S.) 870; 159 Fed. 643; 24 E. R. A. (N. S.) 1283; 121 S. W. 1051; 67 L. R. A. 153. As to the reasonableness of this rule: 77 S. C. 174; 37 Cyc. 1680; 77 S. C. 179; 89 S. C. 567; 90 S. C. 498.</p>