Volume 93 — South Carolina Reports

Before Shipp, J., Sumter, Action by K. E. Watson against Virginia-Carolina Lumber Company and Sumter Lumber Company. The decree on Circuit is: “This was an action brought by the plaintiff to require the defendant, Virginia-Carolina Lumber Company, to comply with the terms of a certain contract, between it and the plaintiff, dated September 1, 1909.

<p>Parties — Specific Performance. — The Court will not decree specific performance of a contract for sale of timber, which involves the construction of the contract of sale to the contractor without having-before it the grantor of the contractor, who has a vital interest in the construction of the contract.</p>

<p>Before Ernest Moore, Special Judge, York, November term, 1909.</p> <p>Action by C'.' Scott Wilson, administrator of Rainey Wilson, against Southern Railway Company and Ed S. Mott. Plaintiff appeals.</p> <p>cites: Refusal of motion to amend complaint to conform to facts is error of law: 26 S. C. 417; 59 S. C. 87; 51 S. C. 418; 3 S. C. 401; 9 S. C. 330; 85 S. C. 454; 55 S. C. 90; 68 S. C. 409; 87 S. C. 240; 83 S. C. 559. Carrier must discharge passenger at station: 6 Cyc. 586, 587, 599; 67 S. C. 65; 41 S. C. 20; 78 S. C. 554. Evidence does not tend only to show deceased was a trespasser: 49 S. C. 18; 61 S. C. 558; 90 S. C. 335; 39 S. C. 162; 66 S. C. 44; 61 S. C. 561; 67 S. C. 510; 72 S. C. 393; 82 S. C. 327; 75 S. C. 293; 90 S. C. 265; 68 S. C. 488.</p> <p>cite: When passenger ceases to be such after leaving train: 6 Cyc. 542; 4 Elliott 1592; 3 Thomp. on Neg. 130; 112 Am. St. R. 255; 10 Am. & Eng. R. R. Cas. (N. S.) 557; 9 Am. St. R. 676. Death of deceased was caused by an independent intervening cause: 32 Pac. R. 809; 37 S. W. 992; 17 N. E. 107; 36 At. 558; 19 S. E. 813; 21 Mo. App, 188; 117 Penn. St 390. Allowing amendments: 30 S. C. 564; 49 S. C. 513; 49 S. C. 516; 19 S. C. 560; 51 S. C. 421; 79 S. C. 270; 70 S. C. 344.</p>

<p>Homestead — Paktittoet.—A childless widow is entitled to a homestead against a judgment obtained against her husband in his lifetime on a debt contracted after the Constitution of 1895 in lands owned by him but not set aside as homestead- in his lifetime, and when set aside as homestead; to- her is subject to partition between her and the other heirs of her husband.</p>

Before Gage, J., Laurens, November term, 1911. Action by First National Bank of Chillicothe against H. L. and L. F. McSwain.

<p>1. Verdict. — Under the evidence and pleadings in this case a verdict, “Find for the plaintiff the land in dispute and two hundred dollars damages,” is not uncertain as to limits and area of the land in question.</p> <p>2. Charge. — Where counsel think the inadvertent use of the wrong word in a charge is not manifest to the jury they should call the Judge’s attention to it.</p>

Before Shipp, J., Aiken, Fall term, 1911. Action by M. C. Craig against Augusta-Aiken Railway Company.

<p>1. Appeal. — -Refusal to strike out irrelevant allegations is not appealable for the reason that the trial Judge is in better position to comprehend the issues and to restrict the evidence to those properly arising and appeal lies from his rulings.</p> <p>3. Evidence — Carrier—Freight.—In an action for actual and punitive damages for injury to a horse in shipping, the shipper may testify as to the instructions he gave carrier’s agent when shipping, the whole conversation, and to treatment of another horse on another occasion.</p> <p>3. Appeal. — The record must show that appellant stated an objection to the evidence; that the 'Court ruled on it; that the testimony was admissible; that it was material or could have in some- way affected the verdict, to obtain consideration of the exception.</p> <p>4. Punitive D'amages. — The instruction complained of in the charge as to punitive damages for injury to a horse shipped contrary to instructions is not subject to the objection that it is not applicable to the facts of the case.</p>

<p>Before DeVorE, J., Barnwell,</p> <p>Two actions: (1) M. L. Miley against H. W. Deer et al.; (2) Mary A. Eaves against H. W. Deer et al. Plaintiff in both actions appeal.</p> <p>cite: As to merger: 24 Ency. 413; 20 Ency. 588; 36 S. C. 330; Dud. Eq. 120; 87 S. C. 47; 74 S. C. 58; 47 S. C. 86. Advancements: 4 Strob. Eq. 124; 5 Rich. Eq. 15 ; 11 Rich. Eq. 108. Family agreements apply to right in controversy: 46 Am. Dec. 460; 1 Story Eq., secs. 1, 31; 1 Swanson 137; 4 Russell 34; 64 S. C. 298; 18 Ency. 97. There is no waiver: 8 Words and Phrases, 7375-7; 63 S. C. 192; 51 S. C. 469. Nor estoppel: 13 S. C. 355; 12 S. C. 351; 1 Freeman Judg., sec. 253; Black on Judg. 609; 17 S. C. 35..</p> <p>cite: Family settlements: 49 S. C. 72; Story Eq. Jur., sec. 132; Pom. Eq. 580; 42 Am. Dec. 461; 9 Rich. Eq. 483; 19 S. C. 593; 32 S. C. 259; Rice 232. Advancements apply only in intestacy: 13 S. C. 528; 17 S. C. 512.</p>

<p>Before Shipp, J., Berkeley, March term, 1912.</p> <p>Action by Joseph McLeod against Atlantic Coast Line R. R. Co. Defendant appeals.</p> <p>cite: Plaintiff must show negligence: 26 S. C. 49; 52 S. C. 323; 82 S. C. 252; 83 S. C. 213.</p> <p>Oral argument.</p>

<p>Amending Pjleadi-stgs. — A Circuit Judge during trial may permit a complaint amended by inserting words changing the cause of action, if he withdraw the case from the jury, if the amendment take defendant by surprise, and permit defendant to answer.</p>

Before Wilson, J., Richland, Two actions: (1) W. Q. Flowers and Loula M. Flowers against Atlantic Coast Line Railroad Company; (3) W. Q. Flowers against same in court of magistrate Benchel.

Before DeVore, J., Berkeley, Action by Midland Timber Company against F. W. Pegues et al. The Circuit decree is : “This case was tried by me without a jury at November term of Court for the above county, 1911.

Before Robert Aldrich, J., Chesterfield, Action by L. A. Perkins against Philadelphia Life Insurance Co. Plaintiff appeals. cite: There was evidence of waiver: 71 S. C. 359; 57 S. C. 16. Forfeitures are strictly construed, and very slight evidence of waiver is admissible: May on Ins. 170, 367; 1 S. C. 24; 29 Bar. 552; 46 S. C. 79; 79 S. C. 494; 78 S. C. 402; 71 S. C. 356; 96 U. S. 234, 572; 106 U. S. 30; 159 Fed. 408; 142 Fed. 709; 52 S. C. 227; 78 S. C. 402.

<p>Before Wieson, J., Richland,</p> <p>Indictment against Edwin F. Bookter for obstructing a public road. Defendant appeals.</p> <p>cite: Evidence not objected to or not moved to strike out not erroneously admitted: 37 S. C. 145; 68 S. C. 421; 72 S. C. 216; 76 S. C. 284. Evidence must be shown to be prejudicial: 63 S. C. 539; 72 S. C. 350; 76 S. C. 275. Admission of evidence to same effect without objection relieves of error: 78 S. C. 143. •</p>

<p>Before Watts, J., Fairfield.</p> <p>Action by Woodruff Machinery Manufacturing Company against D. Y. Timms. Defendant appeals.</p> <p>cites: The instrument must be construed a note: 40 S. C. 529; 43 S. C. 39; 21 S. C. 212; 19 S. C. 445; 14 S. C. 522; 27 S. C. 624; 74 S. C. 452. Breach of zvarranty is a counterclaim: 40 S. C. 529; 80 S. C. 292; 90 S. C. 454. Demurrer should have been sustained even if act of igog does not apply: 15 S. C. 461; 30 S. C. 167; 45 S. C. Ill; 54 S. C. 404.</p> <p>cite: In claim and delivery no counterclaim permissible except in certain exceptionable cases: 15 S. C. 458; 30 S. C. 167; 40 S. C. 529; 45 S. C. 404; 54 S. C. 404; 69 S- C. 226. Allegations in counterclaim not sufficient: Pom. Code Rem., sec. 738; 37 S. C. 16; 70 S. C. 93; 54 S. C. 105; 69 S. C. 321; 70 S. C. 93; 58 S. C. 59; 65 S. C. 184; 3 Strob. 72; 58 S. C. 59; 30 S. C. 171.</p>

<p>1. Principal and Agent. — In a motion to vacate service op a summons on an agent the Court has no power to review the findings of the Circuit Court unless it is wholly unsupported by evidence.</p> <p>2. Ibid.' — Foreign Corporations — Service op Summons — Jurisdiction.— An agent of a foreign corporation doing business in this State upon whom process can- be served should be of such representative character as that the Court could infer from the circumstances that he had authority implied by the law to accept service of process. A broker selling corn for a nonresident corporation on commissions paid by the corporation is such an agent as that service on him would give the Courts of the State jurisdiction of the corporation.</p> <p>3. Foreion Corporations — Service op Summons — Jurisdiction.'—Where a nonresident corporation, enters and does business in a State, it impliedly assents to the terms imposed by the State on foreign corporations doing business therein, and where the State provides that jurisdiction of such nonresident corporation may be acquired by service on an agent in the .State, the corporation cannot deny the jurisdiction of the Court thus acquired.</p>

Before Ernest Gary, J., York. Action by Henry D. Smith against Southern Railway Company and Southern Railway — Carolina Division. Plaintiff appeals. cites: Whether plaintiff was acting zvithin the scope of his employment was for the jury: 37 S. C. 194; 3 S. C. 8; 67 S. C. 391; 58 S. C. 143. Was Douglas acting within his duties? 3 S. C. 8; 67 S. C. 391; 77 S. C. 549; 37 S. C. 377; 65 S. C. 75; 69 S. C. 413; 76 S. C. 211; 58 S. C. 143; 67 S. C. 395; 38 Am.

<p>Before Watts, J., York, November term, 1911.</p> <p>Action by Walter Stewart and Texanna Stewart against Western Union Telegraph Company. Plaintiffs appeal.</p> <p>cite: 63 S. C. 521; 67 S. C. 481; 8 Cyc. 1052; 68 S. C. 356; 113 U. S. 713, 27; 59 S. C. 415; 74 S. C. 209; 69 S. C. 322; 73 S. C. 81.</p> <p>cite: 77 S. C. 378; 72 S. C. 290; 74 S. C. 491; Endlich, sec. 24; Sutherland on S'tat. Con., sec. 261; 26 Ency. 657; 100 Ala. 32; 34 Ark. 224; 59 N. E. 489; 63 S. W. 785; 77 Am. St. R. 652; 49 Am. R. 652; 86 N. E. 522; 37 Tex. 389; 23 Mon. 241; 21 Pac. 485; 51 N. W. 260; 67 Vt. 314; 165 U. S. 159; 21 U R. A. 789; 19 S. W. 910; 6 L. R. A. 359; 44 Pac. 149; 41 S. E. 240; 74 Pac. 640; 15 L. R. A. (N. S.) 906; 65 Ala. 193; 63 S. C. 425; 71 S. C. 29.</p> <p>cites: 72 ,S. C. 2.93; 74 S. C. 491; 207 U. S. 73; 73 S. C. 75; 177 U. S. 584; 194 U. S. 269; 63 S. C. 169, -322; 68 S..C..357; .63 S, C. 425; 57 Eecl. 475; 72 S.' C. 293; 74 S. C. 491;' 69 S. C. 527.</p>

Before Wilson, J., Fairfield,--, 1911. Action by Edward Henry against Southern Railway Company. Plaintiff appeals. cite: Damages for mental anguish are not recoverable in such case: 28 S. C. 485. Witness should not be required to anszver an opinion question on a subject on which he is not an expert: 90 S. C. 267. Agreement to maintain dam need not be recorded: 70 S. C. 528; 71 S. C. 153; 17 Ency. 698.

Before Copes, J., Sumter, Action by S. R. Abbott against Sumter Lumber Co. Defendant appeals. cite: Measure of damage for cutting timber: 61 S. C. 313; 69 S. C. 367. Por cutting by mistake punitive damages should not be awarded: 13 Cyc. 109, 111. Independent contractor: 16 Ency. 187, 192, 191; 65 L. R. A. 445; 30 At. 346; 73 S. C. 212. cites: Value of trees: 61 S. C. 313. Independent contractor: 16 Ency. 204; 26 Cyc. 1562, 1565.

<p>Before Shipp, J., Marlboro.</p> <p>Action by Maggie B. Huestess and C. A. Hubbard, executors of J. B. Huestess, against South Atlantic Insurance Company. Defendant appeals.</p>

<p>1. Contradiction — Witness.'—It is unnecessary to permit a party on cross-examination to bring out irrelevant matters for the purpose of contradiction, where the witness to be contradicted states that some statements made by him before were false and some partly true.</p> <p>2. Evidence — Admissions.—One defendant cannot complain of the admissions of his codefendant as to his own guilt.</p> <p>3. Ibid. — Threat—Confession.—Solicitation to a defendant to make a statement of the truth, held not to be a threat or an inducement to make a confession.</p> <p>4. Charge. — Statements of the trial Judge in ruling on relevancy of evidence is not a charge on the facts.</p> <p>5. Jurors. — To send a sick juror out with a doctor, who is a State’s witness, for treatment, with the statement, in response to a suggestion as to caution, “I don’t think a reputable doctor needs any caution in Court,” is an emphatic caution to the doctor as to his conduct toward the juror.</p> <p>6. Evidence — Opinion.—To permit a witness to say he did not know if his wife agreed with him as to the time the deceased came to Iris house on a certain night, when he had been asleep, is not error.</p> <p>7. Charge. — A statement of the trial Judge on the offer in evidence of a reward for the apprehension of the murderer of deceased, “I think that is a very proper resolution,” is not error.</p> <p>8. Evidence — Reply.—A town ordinance prohibiting the manufacture, sale, etc., of liquor, offered in reply to evidence that the defendant had arrested and handcuffed deceased after a fight for violating this ordinance, while it might have been relevant, was not material since the statute imposed the duty to arrest.</p> <p>9. Charge — Contradiction—Witness.—The remarks here complained of as making the Judge a participant in the decision of the case, held to mean that the testimony offered in contradiction was inadmissible as such as the witness testified to the same things she is alleged to have said out of Court.</p> <p>10. Constitutional Law — Evidence.—Witness is not protected from answering that she had been in jail by the constitutional guaranty, but here its exclusion was of no consequence as her refusal to answer had the same effect as if she had admitted it.</p> <p>11. Evidence — Reasonable Doubt. — The portion of the charge here complained of held to mean that the word “impression,” construed with its connections, was used in the sense of profound effect on the intellect and not in the sense of an indefinite or indistinct notion, belief or opinion, nor is it susceptible of the contention that the jury should be controlled by the preponderance of the evidence.</p>

<p>Before Copes, J., Williamsburg, January term, 1911.</p> <p>Action by W. H. Carr against S. R. Mouzon et al. Defendants appeal.</p> <p>cite: As to pleading notice of fraud: 2 Pom. Eq. Jur., par. 739; 83 S. C. 329; 68 S. C. 109; 39 S. C. 366. The principles of res judicata apply to cases involving title to land: 9 Rich. 387; 85 Am. Dec. 187; 102 111. 115; 79 N. Y. 390; 19 Ga. 124; 95 N. C. 559; 62 Miss. 271; 31 Pa. St. 381; 21 Ency. 224; 55 S. C. 509; 65 S. C. 418; 23 Cyc. 1215. As to construction of sub. 2, sec. p8:15 S. C. 362; 2 N. & McC. 528; Tyler on Eqct. 807; 41 S. C. 172; 1 Rich. 477; 28 S. C. 521.</p> <p>cites: Purchase of title from one obtained by fraud without notice is good: 83 S. C. 329; 14 S. C. 312; 77 S. C. 535; 52 S. C. 345; 58 S. C. 56; 9 Ency. P. & P. 684-5; 78 S. C. 482. First action is not res judicata: 30 S. C. 479; 64 S. C. 197; 84 S. C. 178; 41' S. C. 171; 49 S. C. 1; 67 S. C. 53; 74 S. C. 296; 81 S. C. 307; 86 S. C. 461.</p>

Before Watts, J., Greenwood, Action by P. J. Wells against A. B. Hays, executrix of R. M. Hays. Plaintiff appeals. Entries in account books and stubs of checks are not admissible to show payments: Greenleaf, sec. 120 b-c; Wigmore, secs. 1523-5, 1539; 9 Ency. 930; 22 Ency. 581-2, 585; 2 R. R. A. (N. S.) 401; 15 L. R. A. (N. S.) 138; 17 Cyc. 374; 33 S. E. 640; 57 Ga. 145; 93 Am. St. R. 755; Elliott, sec. 467; McKelvy, sec. 71; 52 E. R. A. (N. S.) 689; 5 S. E. R. 21; 2 Rich.

<p>1. Teleguaph Companies — Damages—Mental Anguish. — A telegram, “John, come at once. Jennie is very bad. Mother,” with the sender’s name and address written on the corner, shows the message was sent for the benefit of the mother and was sufficient notice to the carrier of damages to the mother in case of failure to deliver, but under the act of 1909, 26 Stat. 84, she could recover without notice.</p> <p>2. Ibid. — Ibid.—Ibid.—In an action for failure to deliver such message the mother could testify to suffering and inconvenience resulting to her from the absence of her son and recover therefor.</p> <p>3. Ibid. — Mental Anguish. — The terms, “recklessness or death,” in said act construed to mean “sickness or death.”</p> <p>4. Ibid. — Charge.—Considering the wording of the message and the inferences that might have been drawn therefrom, the Court would have charged on the facts to have instructed the jury that it did not relate to sickness.</p>

Before Memminger, J., Edgefield, Fall term, 1911. Action by Josie Bush and R. S. Bush against Western Union Telegraph Company. Defendant appeals. cite: The act is so irregular and inconsistent as to he of no legal effect: 26 Stat. 84; Endlich, sec. 24; Sutherland, sec. 261; 26 Ency. 657; 100 Ala. 32; 34 Ark. 224; 59 N. E. 489; 63 S. W. 652; 49 Am. R. 652; 86 N. E. 522; 37 Tex. 389; 23 Mon. 241; 21 Pac. 485. The enacting clause controls: 51 N. W. 260; 67 Vt. 314.

Before- Si-iipp, J., Clarendon, Action by J. H. DuBose, as executor of H. G. Dennis, against William D. Flemming et al. Defendants, Thomas Willard Flemming and William D. Flemming, appeal.

<p>Before Gaige, J., Greenwood,</p> <p>Action by A. S. Iler against J. P. Jennings. Defendant appeals.</p> <p>cite: Whether a statement is a warranty is for the jury: 35 Cyc. 481. In an action on an express warranty, recovery cannot be had on an implied warranty: 2 McC. 167; 43 N. W, 99; 60 L. R. A. 311. There is no implied warrant in sale of stock: 44 S. C. 533; 72 S. C. 309; 30 Ency. 139; 62 S. E. 1076. Representations must have been made with intent to deceive: 21 Ency. 880, 896, 895; 1 Cook Stock, sec. 355; 110 U. S. 7; 55 N. Y. 400; 53 S. C. 519; 12 Am. St. R. 488; 24 Am. St. R. 625; 10 Am. R. 551.</p> <p>cite: What is an express warranty? 122 U. S. 581; 87 S. C. 91. Whether there was a warranty is for the jury: 122 S. C. 581; 30 Ency. 141; 8 Blackf. 516; 34 Am. Dec. 497; 18 Vt. 176; 35 Vt. 577; 34 Am. Dec. 108; 9 N. H. Ill; 24 N. C. 411; 26 N. C. 238; 17 Pac. 687; 30 D. Ed. 1172; 10 Ala. 386; 36 Ga. 648; 75 111. 81; 28 Ind. 125; 23 la. 527; 16 N. W. 339; 71 Am. Dec. 489; 18 N.* W. 55; 3 S. E. 840; 27 Atl. 304; 13 Wis. 600; 27 Wis. 626; 74 Ark. 563; 87 Ky. 160; 91 Mo. App. 512; 88 S. W. 1126; 59 A. 142; 149 *N. C. 1; 1 Speer 314. What representation makes a zvarranty: 30 Ency. 139, 136; 62 S. E. 1076; 34 Am. Dec. 500.</p> <p>cite: What acts of director amount to a warranty: 39 S. C. 51; 44 S. C. 61; 45 S. C. 471; 48 S. C. 83; 53 S. C. 528; 60 S. C. 184, 100; 74 S. C. 473; 82 S. C. 382; 65 Am. St. R. 699; 54 Am. St. R. 730; 79 la. 678; 118 N. Y. 365; 85 Am. St. R. 365; 8 Am. St. R. 592; 36 Am. St. R. 586; 18 Am. St. R. 485; 1 Boles. 375; 8 C. C. A. 444; 2 Thomp'., sec. 4150; 2 Cook, sec. 352; 18 L. R. A. 379; 7 L. R. A. (N. S.) 646; 81 Am. D. 57; 29 Ala. 393; 35 Id. 252; 34 Id. 663; 22 L. R. A. 512; 80 S. C. 299; 12 S. C. 590; 7 S. C. 58; 2 Speer 9;'Harp-. 441; 15 S. C. 126; 13 S. C. 203; 41 S. C. 508; 36 Am. St. R. 586. Statement when the information of the parties is not equal: 50 S. C. 402.</p>

Before Pri-nce, J., Marion, Fall term, 1911. Action by C. H. Witcover, continued in the name of H. Witcover, against Henry Grant. Plaintiff appeals. cites: As to construction of secs. 102, I0h and l05 °f Code of Proc.: 48 S. C. 47; 71 S. C. 331. Estoppel in pais should be pleaded: Pom. Code Rem., sec. 712; 27 Am. St. R. 344. cites : Estoppel in pais need not be pleaded (81 S. C. 235) and is a proper defense here: 57 S. C. 279; 81 S. C. 235.

<p>Master and Servant — Fellow Servant. — A servant cannot recover for personal injuries caused by the falling of a pile of bags of fertilizers caused by the bags not being “tied” in piling, the laborer being sent on the pile by a common laborer who was foreman, there being no evidence that he was vice principal or that any representative of the master had ordered the bags “tied” that way or knew they were so piled.-</p>

Before Copes, J., Clarendon, September term, 1911. Indictment against Willie Bethune. Defendant appeals. The opinion herein was filed on July 12, 1912, but petition for writ of error to Supreme Court of the United States was refused and remittitur ordered down on

<p>Warranty — Executors.—Where an executor sells the real estate of his testator after advertisement that the sale is for the purpose of partition in accordance with the terms of the will and warrants the title as executor against the executor and heirs of testator and all persons, the executor is not personally liable for a breach of the warranty.</p> <p>Mr. Justice Woods dissents.</p> <p>Wardeman v. Robertson, Riley Ch. 115, distinguished from this case.</p>

<p>Before SeasE, J., Colleton,</p> <p>Action by Perry G. Smith, administrator of Ann F. Murrell, against Owen H. Smith et al. Defendants appeal.</p> <p>cite: Intention of testator must govern in construction: 4 Kent. 535, 537; 6 Pet. 80; 36 la. 273; 30 Ency. 661, 663-4, 675, 685-6; 1 N. & McC. 69; 2 Bay 255; 2 Mill 346; Harp. Eq. 272; 9 Rich. Eq. 19; 1 Strob. 96; 1 D. E. S. 241; 2 D. E. S. 451; Riley Eq. 167; 4 McC. 151; 1 Hill Eq. 360; McM. Eq. 201; 12 Rich. Eq. 263; 26 S. C. 179; 26 S. C. 450; 27 S. C. 295; 29 S. C. 456; 30 S. C. 184; 36 S. C. 38; 26 S. C. 181. Devisee only took a life estate: 45 S. C. 590; 26 S. C. 454; 27 S. C. 297; 42 S. C. 342; 4 McC. Eq. 151; 29 S. C. 470; 42 S. C. 345; 4 McC. Eq. 151; 8 E. Ed. 322; 30 Ency. 687; 10 S. C. 428 ; Deed Eq. 162; 77 S. C. 454. Residuary clause: 56 N. C. 305; 82 S. C. 214. “Real” in second paragraph should not be made to read “personal:” 2 Jar. 80; 30 Ency. 691.</p> <p>cite: “Real” in second paragraph should read “personal:” 4 McC. 151; 1 D. E. S. 235; 74 S. C. 170. Construction of will as thus changed: 70 S. C. 62; 1 D. E. S. 243; 1 Hill’s Ch. 95; 10 S. C. 428; 24 Ency. 701; Deed Eq. 162; 29 S. C. 470; 30 Ency. 687; 77 S. C. 458; 8 E. R. A. 697; 3 Sup. Ct. R. 580; 2 Hill Ch. 490; 5 S. C. 459; 1 Jar. 339.</p>

Petition by John C. Rhame and James M. Smith against D. E. DuRant, J. P. Kilgore, T. S. DuBose and Stanyarne Bui rows for injunction. The opinions in this case were filed on September 30, 1912, and the case was then ordered reargued before the Court en banc because there was involved a question of constitutional law on which the entire Court is not agreed.

<p>Before Gage, J., Greenville,</p> <p>Action by Nannie J. Good against J. C. Jarrard. Defendant appeals.</p> <p>cite: 9 Har. L. R. 118; 11 Ency. 180; 651 Lim. 8; 78 Am. St. R. 207; 98 Ga. 73Ó; 22 Gratt. 82; 60 Pac. 1104; 4 S. W. 225; 6 Ky. 51; 170 Pac. 155; 107 Mass. 514.</p> <p>cite: 29 Ency. 712; 1 Pom. Ecp Jur., sec. 367; 96 S. W. 731; 103 N. W. 212; 71 At. 220; 106 Pac. 445; 64 S. E. 923; 77 At. 81; 96 A. D. 582; 1 S. W. 199; 111 N. W. 623; 55 S. E. 844; 61 Pac. 926; 99 S. W. 1095; 59 At. 242; 20 So. 419; 21 S. C. 403; 5 S. C. 463; 36 Cyc. 638; 33 L. R. A. 77.</p>

<p>Before Wirson, J., Richland,</p> <p>Action by Frank T. Montgomery against Salina Robinson. Defendant appeals.</p> <p>cite: Motion to dissolve and dismiss was proper: 50 S. C. 317, 529. ' Complaint should have been dismissed: 32 S. C. 509; 33 S. C. 410; 54 S. C. 457; 64 S. C. 405; 69 S. C. 256, 551; 74 S. C. 178; 77 S. C. 81. Entry and threats not sufficient: 54 S. C. 430; 60 S. C. 391, 559; 77 S. C. 81; 74 S. C. 480; 124 U. S. 400; 35 Am. St. R. 660; 9 S. C. 303; 81 S. C. 188; 22 Cyc. 789; 1 High., sec. 64; 22 Cyc. 788. Leave was forfeited: 3 Strob. 44; 1 N. & McC. 501; 12 Rich. D. 44.</p> <p>cites: Demand to work forfeiture must be specific: 140 U. S. 25. Slight acts show waiver of forfeiture: 51 S. C. 547; 96 U. S. 242; 47 A. S. R. 197; 11 A. & E. Ann. Cas. 62; 82 S. C. 282. Complaint must only state prima facie case: 27 S. C. 415; 69 S. C. 52. This question is res judicata: 51 S. C. 434, 473; 277 S. C. 415; 62 S. C. 220; 67 S. C. 84.</p> <p>The opinion in this case was filed on November 5, 1912, but remittitur held up on petition for rehearing until</p>

<p>Before Shipp, J., Marion,</p> <p>Action by Thomas Monroe Richardson against Atlantic Coast Lumber Corporation. Defendant appeals.</p> <p>cites: Parol testimony as to boundaries should not have been omitted: 79 S. C. 54; 9 Rich. 50; 43 S. C. 370; 69 S. C. 93. After acquired title zvill pass under prior grant: 16 Cyc. 689, 686; 19 S. C. 16. One claiming under another who is estopped is himself estopped: Herm. on Est. 720; 21 S. C. 70.</p> <p>cite: One cannot assert an after acquired title against the person to whom he conveyed with general warranty when he had no title: 24 Ency. 75, 115; 23 L. R. A. 561; 1 Rich. Eq. 71; 5 Rich. Eq. 434; Dud. 23; 3 McC. 411; 17 S. C. 592; 19 S. C. 9; 21 S. C. 55; 30 S. C. 302; 43 S. C. 359; 66 S. C. 373; 40 S. C. 168; 20 S. C. 23. Authorities to the contrary: 16 Cyc. 698; 11 Am. R. 295; 36 S. W. 288; 117 N. W. 133; 57 N. Y. 97. Authorities sustaining the ruling below: 2 Smith’s Leading Cas. 734; 8 Paige 361; 14 Mass. 296; 23 Am. Dec. 280; 67 Am. Dec. 362; 32 Am. Dec. 772; 91 Am. Dec. 163; 36 Am. Dec. 136; 34 N. J. Eq. 234; 23 L. R. A. 561; 55 At. 670. Defendant must show a perfect right to cut: 59 S. C. 115; 86 S. C. 358; 59 S. C. 131. Declaration of a party accompanying an act is admissible: 3 McC. 261; 4 McC. 262; 86 S. C. 367; 79 S. C. 54. Punitive damages may rest on gross negligence: 69 S. C. 166; 87 S. C. 527.</p> <p>The opinion herein was filed on July 22, 1912, but held up on petition for rehearing until</p>

<p>Railroads — Switchman—Yard—Issues.—Whether due care required signals in a freight yard for benefit of employees and whether there was simple negligence or wilful disregard of the safety of employees is for the jury. Whether a switchman could recover for injury received in a freight yard, while going to set a switch, from being hit by an engine running at a rapid rate of speed, without signals and with only the engineer to look out, is for the jury.</p>

Before Rice, J., Clarendon, Proceeding in probate court to prove will of E. M. Briggs in solemn form. Contestants appeal from the following order made on Circuit on appeal from p-robate court: “This matter comes before me upon exceptions to the decree of the judge of probate of Clarendon county, the whole record before the probate court having been certified up to- this Court as required by the Code.

Before Memminger, J., Colleton, Summer term, 1912. Action by James Fraser against Atlantic Coast Fine Railroad Company in the court of magistrate J. E. Bryan. From Circuit order reversing judgment of magistrate, defendant appeals. No citations. cite: Exception one cannot be considered: 83 S. C. 213; 70 S. C. 216, 555; 71 S. C. 411; 62 S. C. 408; 70 S. C. 180; 45 S. C. 496; 35 S. C. 509. Circuit Court has full control over magistrate case: 80 S. C. 524; 92 S. C. 309.

Before Shipp, J., Dillon, Action by J. J. Tolar and W. G. Tolar against Marion County Dumber Company. Plaintiffs appeal. cite: Deed of minor is only voidable: 18 Am. St. R. 516; 4 McC. 241; 2 Mills 201; 27 S. C. 300; 22 Cyc. 531, 545-6. A deed, after attaining majority, disaffirms a deed during minority: 22 Cyc. 556-7; 2 Mill. 202; 3 Brev. 401; 1 Tread. 468; 18 Am. St. R. 665, 681; 36 Am. St. R. 25; 4 Post 41; 47 Am. R. 418; 24 N. W. 452.

Petition in the original jurisdiction of this Court by B. R. Tillman, Jr., against Mrs. Lucy Dugas Tillman, alias Mrs. Lucy Dugas. cite: Former conduct of petitioner should not avail against his present conduct: 73 S. C. 304; 101 Pac. 741; 16 Idaho 441; 33 Am. R. 868; 9 A. & E. Dec. in Eq. 93.

Before Ernest Gary, J., Greenville, November term, 1910. Action by Georgie E. Fonville, as administratrix of Wm. J. Fonville, against the Atlanta and Charlotte Air Fine Railway Company and Southern Railway Company. Defendants appeal. cite: As to the admission of the confessions, conviction and sentence of Agnew: 4 Rich. L. 146; 1 Wig. Ev., sec. 142; 6 Ency. 65; 16 Ency. 246.

<p>Before WiESON, J., Richland,</p> <p>Action by George W. Dennis against Columbia Electric Street Railway, Right and Power Company. Defendant appeals.</p> <p>cite: Evidence of good character in reply was incompetent: 49 S. C. 420; 12 Rich. 654; 83 S. C. 36; 3 Ency. 12, 17, 18; Jones on Ev., sec. 158. Liability of carrier for injury to one passenger from acts of another: 84 S. C. 19; 77 S. C. 434.</p> <p>cites: The only objection offered to the reputation evidence being that it ivas not in reply that is the question here, and admission of such evidence is discretionary with trial Judge: 76 S. C. 142, 532; 68 S. C. 133. But the evidence was competent: 67 S. C. 495; Green, sec. 54; 5 Rich. 153. Appellant should have requested limitations on the doctrine announced: 70 S. C. 148; 88 S. C. 388; 81 S. C. 152; 75 S.' C. 390.</p>

Before DeVore, J., Hampton, Action by State of South Carolina, ex relatione L. F. Causey, clerk of court, against R. E. Causey, executor of W. B. Causey, The United States Eidelity and Guaranty Co-, and Gulf and Atlantic Insurance Co. Both parties appeal. cite: Acts virtuti or colore officii: 71 S. C. 154; 4 N. Y. 173; 1 Fed.

Petition in the original jurisdiction of this Court by W. O. Goree for writ of mandamus to the county supervisor and county treasurer of Greenwood county.

<p>Before SeasE, J., Spartanburg,</p> <p>Action by Burnett & Johnson against J. H. Senn. Defendant appeals.</p> <p>cite: 79 S. C. 388.</p> <p>cites: 43 S. C. 262; 41 S. C 206; 39 S. C. 457; 44 S. C. 377.</p>

Before Memminger, J., Action by Arthur E. Davies against Western Union Telegraph Company. Defendant appeals. cite: Oral testimony as to contents of message is not admissible: 5 S. C. 358; 72 S. C. 257. No recovery can be had except for wilful acts alleged: 45 S. C. 278; 55 S. C. 483; 84 S. C. 60. No damages can be recovered for wilfulness unless actual damages are sustained: 60 S. C. 67; 65 S. C. 1.

<p>Primary Elections — Certiorari—Jurisdiction Waiver. — Filing a notice of contest in a primary election before the county executive committee after the time prescribed by the rules of the party is a question of jurisdiction, of the person, and where the contestee remains and participates in the trial of the contest on the merits after the question of jurisdiction is decided) against him, this question is waived. The issue of waiver being one of fact is presumed to be decided against petitioner by the action of the State executive committee.</p> <p>Ex parte Sanders, S3 S. C. 478, distinguished from this case.</p> <p>Mr. Justice Woods, with whom concurs Mr. Justice Hydrick, thinks the rule of waiver of jurisdiction should not be applied to cases in special tribunals, and that under the facts McConnell could not have served his notice within the time prescribed by the núes, and his notice of appeal carried the whole matter to the State executive committee.</p>

Before Watts, J., Fairfield, September term, 1911. Action by Mary J. Carter, administratrix of J. T. Carter, against Southern Railway Company and J. FI. Flerring.

<p>Before Memminger, J., Abbeville,</p> <p>Action by the Farm and Land Company of Abbeville against J. W. Roseman. Plaintiff appeals.</p> <p>cite: Rich. Eq. Cas. 235; 7 S. C. 181; 16 S. C. 87; 21 S. C. 121, 205; 48 S. C. 175; 53 S. C. 569; '68 S. C. 442; 2 Spence’s Eq. Jur. 310; 22 N. J. 547; 21 S. C. 121.</p> <p>cites: 41 S. C. 349; 48 S. C. 175; 31 Wall. 302; 32 S. C. 203; 56 S. C. 252; 36 Cyc. 544; 1 Hills Ch. 51; 6 Pom. Eq. Jur., sec. 763; 3 Pom. Eq. Jur., sec. 1293; 6 L. R. A. (N. S.) 403; Pom. Eq. Spec. Per., sec. 387.</p>

<p>Before Frank B. Gary, J., -Colleton,</p> <p>Action by Junius E. Beal against J. J. Divine, trustee. Defendant appeals.</p> <p>cite: Rich. Eq. Cas. 238; 21 S. C. 121; 48 S. C. 176.</p> <p>cite: 44 S. C. 119: 52 S. C. 461: 61 N. W. 195: 88 S. C. 144.</p>

Before Sease, J., Abbeville, Action by B. IT. Carlton against Southern Railway. Defendant appeals. cite: Defendant having acquired no franchise to operate the road in question is not liable under the rule of principal and agent: 25 S. C. 221; 28 S. C. 404; 41 S. C. 415; 63 S. C. 370; 73 S. C. 574; 75 S. C. 170; 79 S. C. 275; 44 L. R. A. 753; 32 Am. R. 632. cites: On same point.

<p>Before Gage, J., Union,</p> <p>Action by Cornelia McDowell against J. A. Brown, James Shoppaul and May Shoppaul. Plaintiff appeals.</p>

Before Gage, J., Union, February term, 1912. Action by North River Insurance Company and Globe and Rutgers Fire Insurance Company against Southern Railway Company. Plaintiff appeals on following except tions: 1. “It is respectfully submitted that his Honor, the presiding Judge, erred in holding and ruling that this action is barred by the statute of limitations.

<p>Before Wilson, J., Abbeville, October term, 1910.</p> <p>Action by W. A. Palmer, as administrator of Bee Robinson, against Abbeville-Greenwood Mutual Insurance Association. Defendant appeals.</p> <p>cites: 2 Cool. Ins. Brief 1340, 1384; 20 Or. 550; 10 W. Va. 521; 19 Cyc. 920; 28 Me. 254; 7 Tex. Civ. App. 421; 26 N. Y. 422; 4 Ind. Ap. Ct. 237; 20 Barb. 339; 11 Ency. P. & P. 412; 40 S. C. 519.</p>

<p>Before Wilson, J., Spartanburg,</p> <p>Action by Joseph Brewton against W. J. Shirley. Defendant appeals.</p> <p>cite: 51 S. C. 25; 30 S. C. 335; 80 S. C. 84; 32 S. C. 58.</p> <p>cite: 21 S. C. 11; 41 S. C. 356; 69 S. C. 570; 73 S. C. 582.</p>

<p>I. Exceptions. — This Court cannot consider exceptions charging- error in admitting evidence set out only in the exceptions; nor in refusing a motion for nonsuit when the “Case” does not show the grounds or that the motion was made; nor in refusing to give certain requests which are not referred to in the “Case.”</p> <p>3. Ibid. — Appeal.—It is sufficient if the “Case” state requests and grounds of nonsuit are correctly stated in the exceptions.</p> <p>3. Adeem. — Judgment—Magistrate.—Where there is evidence warranting a judgment of a magistrate court, and there is nothing to show its affirmance on Circuit was controlled or affected by errors of law, this Court will assume the. Circuit Court affirmed the judgment on the merits disregarding errors not affecting the merits.</p>

<p>Before Memminger, J.,' Abbeville,</p> <p>Prosecution by City of Abbeville against Laura Gooseby. From Circuit order affirming judgment of municipal court, defendant appeals.</p> <p>cites: Code 1902, 987; 80 S. C. 92; 30 S. C. 94; 74 S. C. 443; 43 S. C. 107.</p>

Before SeasE, J., Charleston, October term, 1911. Action by Martin K. Berger against Charleston Consolidated Railway, Gas and Electric Company. Plaintiff appeals. cites: Negligence of parent cannot be imputed to the child: 66 S. C. 47; 84 S. C. 553.

Before Gage, J., Laurens, Action by Nancy Knight, Sue Robertson et al. against R. A. Jones and Molly S. Nash. Plaintiffs appeal.

<p>Appeal — Default Judgment. — An order of reference of the issues in a motion to set aside a judgment by default on the ground that defendant was not served with a copy of the summons and otherwise not properly made a party to the action is within the discretion of the trial Judge and not appealable.</p>

<p>1. Negligence — Contracts.—The law imposes liability upon every person legally responsible for the proximate consequences of his negligence and the fact that one has contracted against liability on certain grounds does not relieve him of liability for his negligence resulting proximately in injury and damage to the other party to the contract in respect to matters for which he has not contracted for exemption from liability.</p> <p>2. Ibid.. — Master and Servant. — Where a contract between two transportation companies provides that one may use the tracks of the other for certain purposes, the one to furnish its own engine, the other to employ the engineer, whose duty it is to keep the engine in good repair, and damage occurs from fire set out by the engine by reasou of defective grates, it matters not whose employee the engineer was, as it was not his duty to keep the grates in condition.</p>

Before Shipp, J., Florence. Action by Rebecca A. Gibson in her own right and as guardian et al. against James S. Gibson et al. So much of the Circuit decree as refers to the matters in issue here is: “The serious controversy in this case is as to* the proper construction of the following clauses of the will of N. S. Gibson: T confirm the gifts of land as given to* my nephew, James S. Gibson, and my niece, Eliza Haigh, namely, to James S. Gibson all the land now in his…

<p>1. Allegation and Proof. — In this case the Court finds no discrepancy between the bill of particulars furnished defendant’s counsel on demand in an action on account and the proof of plaintiff.</p> <p>2. Corporations — Dividends.—There is no proof here to sustain the objection that dividends were paid out of the capital stock.</p> <p>3. Ibid. — Ibid.—A corporation may declare and pay dividends before it is entirely out of debt.</p>

Before Gaige, J., Spartanburg, Action by Sylvester L. Lester against Carolina, Clinch-field and Ohio Ry. of South Carolina. Defendant appeals. cite: Does mere proof of breakage establish a defective condition: 66 S. C. 256; 69 S. C. 359; 72 S. C. 398, 101. cite: Failure to inspect and repair is prima facie negligence: 34 S. C. 211.

<p>1. Right op Way — Estoppel.'—A deed conveying to a railroad company a right of way “one hundred feet in width on each side of the track or roadway measuring from the center” conveys a right of way two hundred feet wide. But where the agent of the railroad company when obtaining the deed, made without consideration, honestly represents to grantor that it conveys a right of way only one hundred feet wide and it has been so treated by the parties and their grantees for a number of years by acts inconsistent with the easement, the grantee of the railroad company is estopped from now insisting that the deed conveys a right of way two hundred feet wide.</p> <p>2. Estoppel. — Ti-ie Statute of Limitations do not apply to the defense of estoppel by misrepresentation.</p> <p>3. Evidence — Right of Way. — In this case evidence that the right of way at other points was two hundred feet, and that the railroad company only cut out fifty feet on each side of the track, was admissible, because: First, it was admitted without objection; second, the record does not show the Court made or was asked to make any ruling as to it; third, it tended to disprove defendant’s contention that as only fifty feet on each side was staked off on grantor’s land only that width was intended to be conveyed.</p>

Before Aldrich, J., Cherokee, Fall term, 1911. Action by Maryland Casualty Co. v. Gaffney Manufacturing Co. Plaintiff appeals. cite: No ambiguity in contract: 77 S. C. 92; 8 Gray 427; 134 S. W. 1164; 80 At. 217; 141 S. W. 319; and none alleged: 108 S. W..829.

<p>Before Ernest Gary and Watts, JJ., Richland,</p> <p>Indictment against A. F. Madry and G. F. Kaigler. Kaigler appeals.</p>

<p>Before Gage, J., Union,</p> <p>Action by John C. Lowe against Ottaray Mills. Defendant appeals.</p> <p>cite: Use of stream by upper proprietor: 1 Farn. on Waters 623; 2 Farn. 515; 10 L. R. A. (N. S.) 586; 24 L. R. A. 572; 60 S. C. 254; 79 S. C. 351.</p> <p>cites: Use of stream by upper proprietor: 85 S. C. 1; 30 Ency. 378; 14 Am. St. R. 319; 81 Am. St. R. 727; 6 Am. St. R. 366; 59 Md. 96; 30 Ency. 371-82; 14 Am. St. R. 319; 77 Am. St. R. 335.</p>

<p>Parent and Child — Slaves—Intestate's Estates. — The son of a slave by a woman in concubinage, whom he acknowledged as his son after 1865, is not entitled to inherit with the woman to whom the slave was morally married as such and with whom he lived as his wife after emancipation.</p>

<p>Railroads. — The istjunotioh order here complained of held to mean the railway is restrained from using its tracks only when used in connection with maintaining the coal chute herein abated as a nuisance.</p>

Petition in the original jurisdiction of this Court by Henry D. Watkins for injunction against S. B. Brasington, mayor, and others, as aldermen of the city of Camden, and W. J. Dunn and others, as commissioners of public works of said city.

<p>1. Delivery op a deed to one paying the purchase money, made to another, is sufficient delivery to pass the title from grantor to such third person, although the purchaser goes into possession, pays taxes, improves it, and1 treats it as his own, and the grantee is not informed at the time of the transaction.</p> <p>2. Real Property — -Resulting Trust — Parol Evidence. — Ti-ie Presumption that a resulting trust arises in favor of one who pajrs for land and takes the title in the name of another may be rebutted in whole or in part by parol evidence, and the intention of the purchaser may be shown by parol. Here it is held that paying for land and taking the deed- in the name of another, with the intention of making a gift to the other, no resulting trust arises, although the purchaser went in possession, improved the land- and claimed it as his own, and that the purchaser’s deed to another carries no title, and the land passes to the purchaser for life and then to first grantee.</p>

<p>Before Memminger, J., Abbeville,</p> <p>Action by E- A. Mars et al. against Albert Gibert et al. Plaintiffs appeal. The will in question is:</p> <p>“State of South Carolina, Abbeville County.</p> <p>“In the name of God, Amen.</p> <p>“I, John de la Howe, of the county of Abbeville, in the State of South Carolina, M. D., being of sound and disposing mind, memory and understanding, do make, ordain and publish this my last will and testament.</p> <p>“In primis, it is my will and desire that my remains shall be buried as near as can be to the spot where those of the late Miss Rebecca Woodin are deposited, on the hill opposite to the dwelling house rvlierein we both resided together, and I still do reside, on my plantation or farm named Lethe, as the last mark and testimony of my friendship and sense which I ever have retained of her merit; and it is further my will, that as soon as it can conveniente be done after my decease, a substantial brick wall shall be built around our sepulchers, not less than ten feet square in the clear, eight feet above ground, and two bricks thick; with a substantial door and lock, ahd ttíkt the whole of it, shall forever be kept up and in good order, and the area within clear of bushes and weeds; that the following inscription in large iron capitals shall forever be kept incased in the door, Rebecca Woodin obiet 4th Oct. ris 1788 — Joes de la Howe fundator Seminarle Agriculturalis, with the date of my decease.</p> <p>“I give and devise all my real and personal estate of whatsoever nature it may be, so in possession as in right, (excepting what is hereafter by this my last will otherwise disposed of) to the president and Agricultural Society of this State of South Carolina, now or lately holding their usual meetings in the city of Charleston, and to such of their members as the said society pro tempore shall name and appoint to take the execution and trust contained in this my last will and testament upon them, and to their successors in said appointment forever. That is to say, in trust for the following intent, uses, and purposes, and for no other use, intent, or purpose, whatsoever, viz: for causing and procuring, to be erected, established, organized, and forever kept up on that part of the plantation where I now reside or any other part between the springs and mouth of the branch which runs through the yard1, and Little River, an agricultural or farm school, in conformity as near as can be (Mutatis Mutandis) as occasional circumstances may render advisable, and the wisdom of the society shall suggest, to a plan proposed in the Columbian magazine for the month of April, one thousand seven hundred and eighty-seven; with this difference — that this farm school is principally by me intended for by the yearly income of the estate by me devised and bequeathed by this my last will, forever both educating in conformity to the said plan, and also lodging, feeding and uniformly clothing twelf poor boys and twelf poor girls, whose parents, or who' themselfs have resided in Abbeville county aforesaid, not less than six years, and actually continue to reside within the compás or extent of said county; but that orphan children' (Cateris Parebus) shall have the preference. And it is my will that they shall manufacture such of their clothing themselfs, as can be made out of the produce of the farm, and that the trustees shall be pleased to procure out of the ready money which I shall leave at my decease, such implements for facilitating labour, as may not only answer that purpose but contribute at the same time to the facilitating the labour of the neighbors and making them more industrious; provided that not above one hundred pounds sterling be employ’d in the purchase of said implements. And I do wish and recommend, the use of beach leaves gathered before the frost, and dried in the shade for bedding, as the leaves of the beach tree, cured as mentioned, make a comfortable, and by far more healthy bedding than feathers, as they will remain good for four or five years, and may be easily renewed, and as being introduced amongst the poorer class of citizens (whose bedding is now a blanket) they may thereby enjoy one that is comfortable and healthy.</p> <p>“And it is my will that such part of my personal estate as the trustees shall not think immediately necessary or particularly useful for carrying on the farm and farm school, shall be by them sold in such manner and such terms as they may think the most advantageous; but that in particular my surveying compass, chain, and instrument case, shall be reserved for the use of the farm school, as likewise such books as in their judgment may be useful to- the master, and particularly, Shaw’s chemistry, so that he thereby may be enabled to comply with the next following article, if unacquainted with the principles, viz: That it shall be the duty of the master, that besides having the boys instructed in reading, writing, arithmetic, principles of geography, and of geometry so far as to render them versed in practical surveying, and the girls in reading, writing and four common rules of arithmetic, he will and shall instruct both boys and girls, (so as occasion offers) in such chemical principles, as the success of their different operations depend upon, as malting, brewing, distilling, baking, fixing different colours, making vinegar, soap, cheese, butter, etc., etc.</p> <p>"And it is my will that such children as reside conveniently in the neighborhood for attending the school, may be allowed to be instructed as the children of the farm school, those of parents not able to pay the schooling, gratis, and those who can afford it, at such rate as they and the master can agree upon,- but to such number only as the trustees shall judge that the master can conveniently instruct, provided that all children admitted into the said farm School shall be obliged' to conform to such rules and regulations, as the trustees or master shall from time to time reasonably make for the government thereof.</p> <p>“And it is further my will, that in the choice of a master for the said farm school, skill, industry, and morals shall be the only qualifications attended to, and that in the admittance of poor children, no manner of regard shall be paid to what religion or sect they or their parents possess; and that it shall be a particular charge to the master, to teach and instruct them only, in the general plain, and practical parts of religion and morality, without medling with speculative and controverted points, or with such as constitute the particular character of any sect.</p> <p>“In case that it should appear to the society that the yearly income of the estate by this my last will given and devised, should not be sufficient to carry immediately my above disposition into full effect, (which however is not expected) I in that case request them to make such beginning as the yearly income may bear the expenses of, in such manner that the stock on the farm, as horses, mares in particular, horn cattle and sheep may be kept up for the use of the farm, but as I shall leave a considerable sum in ready money, I recommend that such suitable but simple buildings in the way of my present overseer’s house may be immediately erected to answer the plan to the whole extent, but that all the outward timben may be of chestnut.</p> <p>“It is also my will that my tract of land, part of which I do now keep inclosed and reside on, made up of twenty-one original tracts, and by a late re-survey containing two thousand six hundred and thirty acres shall be forever so far indevisable as that five hundred acres shall be laid out for the farm, including what is under fence, and that one thousand acres shall forever remain in wood or forest, in order to supply the farm with convenient range and with fuel and timber, and' in process of time contribute to the support of the institution, but that the surplus land over and above the five hundred, and one thousand acres before specified may be by the trustees to farm let in such tracts as they shall think to the best advantage, provided that no tract of land by this my last will devised shall ever be let on a more extensive lease than that of fourteen years, and that every' such lease shall contain a condition that the lessee shall not cut or willfully suffer to be cut any timber or wood from the said thousand acres reserved for the use of the farm school, unless by and with the express permission of the trustees.</p> <p>“And it is my will, that in case the Agricultural Society of South Carolina, should against my expectaton (the plan being relative to the institution of the society) should decline or neglect appointing trustees for taking upon themselves the execution of this my last will and testament or the trust contained in the same, or that the said society should at any time be dissolved or annihilated, that then and in each'of these cases, the execution of this my last will or the trust contained in it, shall devolve upon such trustees as the honorable legislature of this State shall please to name and appoint; and as the aim of this my last will and testament, is to raise useful citizens, I do hereby humbly request the honorable legislature that in the above case they may be pleased to incorporate such trustees as they shall think proper to appoint, under such clauses and regulations as in their great wisdom shall seem meet; and for the same reason of intending to raise useful citizens to the State many whereof would without such an institution be a nuisance, I begg the honorable legislature graciously pleased to keep the institution under their fatherly protection.</p> <p>“It is-further my will, that whenever the yearly income of the estate by me bequeathed and devised, shall be adequate to it, such children as shall have completed their education at the farm school provided they have not resided there a less time than five years, and behaved to the satisfaction of the trustees during their residence, shall receive such gratification in cattle from the trustees, as in their judgment they shall think expedient.</p> <p>“I give and devise to the heirs of the Rev’d Mr. Samuel Frederick Lucius, in his life time, V. D. M. the immediately hereafter to be mentioned three continuous tracts of land, viz: One tract of one hundred and fifty acres, one do. of one hundred acres adjoining the first and one tract of fifty acres adjoining the two former, making together a valuable plantation of -three hundred acres, more or less, situate on Savannah River and Swift Creek in Edgefield county, below the mouth of Little River, in compensation of such balance of a conditional bond, by me given to- the said Mr. Lucius, as the heirs think unpaid (no matter whether any is due by me or not) as the executrix and heirs have hitherto- been unwilling or unable to produce the said bond, tho’ repeatedly by me required and sollicited to- it in order to verify the different receipts of the said Mr. Sam’l Fred’k Lucius for large sums on the back of the said bond by which, and such other vouchers as are in my possession, I believe that the estate rather would be found in my debt; provided nevertheless that the said executrix (now Mrs. Susanna Gibson of the C'ongarees) and the said heirs, shall and do within one year immediately succeeding the date of my decease, manifest, declare, and make it known to the president and Agricultural Society of South Carolina, that they do accept of the said three tracts of land, or plantation of three hundred acres, more or less, in full compensation of what ballance may possibly be due by me on the said conditional bond; but it is my will that in case the above mentioned heirs, shall not manifest, declare, and make known as aforesaid, that they accept of the said plantation on the conditions above specified, that then the said three tracts of land, shall make part of the map, and remain annex’d to the bulk of the estate by me given and devised, and that in that case, on the said heirs or executrix verifying any ballance to be due by me, my said executors or trustees shall please discharge the same. It is my will that immediately after my decease, my old negro- man Bacchus shall be free and manimitted, as I have considered him to be many years ago, and as that notwithstanding, his voluntary services have been performed with equal honesty and fidelity, it is my will, that all my common wearing apparel by me given to him, and during the small remainder of his life, he be maintained out of the income of my estate, both in sickness and health, with every possible ease and comfort, as his meritorious services deserve every comfort- in my power to procure him. I therefore particularly recommend this to my executors and trustees.</p> <p>“To my worthy and much respected friends Dr. Edward Jenkins, V. D. M., and his lady, James Dinah and his lady, and Capt. Edward Dinah, son of the said James, and to his lady, and to each of them, I give one mourning ring of the value of one Guinea, which I wish them to accept as a testimony that I have only lost the grateful sense of their friendship with my breath; knowing that in their circumstances, anything valuable would be beneath their acceptance. To Miss Anne Cook my present housekeeper, I leave ten pounds sterling in compensation for her services.</p> <p>“I do name, request, make and appoint the honorable president and South Carolina Agricultural Society, and such of their members as they shall please pro tempore to name and appoint to' take the execution and trust of this my last will and testament upon them, and their successors in said appointment forever, executors and trastees to this my last will and testament; and I do request Peter Gibert, Esq., of Mill Creek, in said county of Abbeville, to take the execution of it to himself until such of the members as the agricultural society shall please to name and appoint do take the same upon themselves — and I do by this revoke and annul all former testaments which I may have made at any time previous to this seventh September, in the year of our Lord one thousand seven hundred and ninety-six. Whatever ready money I shall leave at my decease, (in case it pleases God it should be shortly) is known to my above executor, Peter Gibert, Esq. John de la Howe, (L. S.).</p> <p>“Sig’d, seal’d, declared and published by the said John de la Howe, the testator, as his last will and testament, in the presence óf P. Gibert, L. Eymerie Mark, Anna Cook.</p> <p>“I now do hereby declare and republish my above will and in order of having the said will and testament more properly executed, I do name and join and appoint Mr. William Hutton, of Abbeville county, planter, as a joint executor with Peter Gibert, Esq. John de la Howe.” January 2d, 1797.</p> <p>cite: The doctrine of cy-pres has not been adopted by the Courts of this State: 3 Rich. 509; Story Eq., sec. 1182; 9 Smith 278; 2 Strob Eq. 395.</p>

<p>Libel — Issues.—When criticism and statement cease to be fair and honest and become libelous is usually for the jury and can rarely be decided on demurrer. Where a newspaper threatens to destroy plaintiff’s business and in pursuance thereof falsely and maliciously charges that plaintiff refrained from making an open charge against a candidate for public office at the proper time and afterwards resorted to secret, insidious and discreditable charges when it was too late for the candidate and his friends to refute them, the issues whether the limits of free criticism had been passed in the discussion of public affairs and the plaintiff unjustly exposed to obliquy and disgrace should be sent to ihe jury. Difference between criticism and defamation stated.</p> <p>Me. Justice Watts thinks the allegations clo not make out a case of libel.</p> <p>Hubbard v. Hurman University, 76 S. C., 510, distinguished from this case.</p> <p>3. Reheaeihg refused.</p>

Before SeasE, J., Greenwood, .Indictment against Geo. W. Long.

Before Ernes-T Ga>ry, J., Anderson, Action by D. C. French, as executor of Elizabeth Clement, against Kate Way, as executor of Allen W. Clement. From Circuit decree affirming judgment of probate court, defendant appeals. cite-: Effect on trust property on failure to distinguish that from property of trustee: 4 Mas. 29; 11 Pick. 173; 89 A. D. 141; 42 Pac. 466; 49 Pac. 188; 37 At. 491; 45 Hun. 284; Rich. Eq.

<p>Before Spain, J., Darling-ton,</p> <p>Indictment by Town of Hartsville against Dan Munger. From Circuit order affirming judgment of mayor, defendant appeals.</p>

Before Copes, J., Barnwell, March term, 1912. Action by H. W. Herlong against Southern States Lumber Company. Defendant appeals. cites: When á contract is partly verbal and partly written, the verbal part may be shown by parol: 61 S. C. 169; 66 S. C. 61; 81 S. C. 547. Evidence of plaintiff strictly in reply: 79 S. C. 124; 43 S. C. 99.

<p>]. Carrier — Passenger.—Where an agent of a carrier agrees to inform a passenger when a train leaves a station, the carrier is liable for failure of agent to do so, if his failure is negligent.</p> <p>2. Ibid. — Ibid.—Punitive Damages. — Evidence that a lady traveling alone, sick and nervous, with an infant, informs an agent of a carrier that it is important that she take a train leaving his station and repeatedly asks him to inform her of the time of the train’s departure, which he promises to do, but fails, and when accosted by her after’ the train has left uses insulting language to her and1 does not do anything nor try to do anything to assist her, will support a verdict for punitive damages.</p>

Before Ardrich, J., Chesterfield, Action by E. T. Watson against Paschall & Co cites: The sendee is bound only by message delivered: 88 S. C. 498. Contract should be construed in the light of the surrounding circumstances: 68 S. C. 440. cite: Nothing in telegram. to show offer was declined: 83 S. C. 41. Party can not complain of a statement of his claim: 75 S. C. 19. Contracts should be construed by the words used: 19 S. C. 445.

Before Prince, J., Beaufort, Action by Dewey Sanders against Charleston and Western Carolina Railway. Defendant appeals.

<p>1. Cities and Towns — Boards op Health. — -A city council 'has no authority by ordinance to annul a resolution of the Hoard of health.</p> <p>2. Boards op Health — Dairies—Jurisdiction.—The board: of health of the city of Charleston has authority to require by resolution all dairies removed, beyond the city limits, and the Courts have no jurisdiction to review its action so long as it is not arbitrary or capricious.</p> <p>3. Injunctions. — A Circuit Judge in determining whether a temporary injunction should be granted may consider the showing made by the defendant along with that of the plaintiff.</p>

Before Wilson, J., Marlboro, Action by J. P. Bell against J. W. Jackson. Plaintiff appeals. Thp complaint and order in question are: I. “That the defendant, J. W. Jackson, heretofore, on the 34th day of August, A. D. 1913, executed and delivered- to plaintiff his promissory note, of which the following is a copy: $33,500. Dillon, S. C., August 34th, 1911.

<p>1. Appeal. — If while an appeal is pending-, a motion is mad’e below by appellant to vacate the judgment and grant a new trial on after-discovered evidence, which is granted and the trial results in a judgment for appellant, the appeal cannot be further prosecuted.</p> <p>2. Ibid. — Costs.—In such case, this Court has no original jurisdiction as to appeal costs.</p>

<p>1. Contracts — Written Instruments. — Charge here complained of held to mean that one signing a written instrument is bound by it, notwithstanding his carelessness in not reading it, unless he had .been defrauded or deceived into signing something he did not know the contents of.</p> <p>2. Ibid. — Goods.—One ordering goods is not required1 to take them if the seller so intermingles them in shipping with goods not ordered that the buyer could not separate them but would have to take the whole lot to get what he ordered.</p>

Before Memminger, J., Beaufort, Action by Kate H. DuBois against Jesse D. Peeples. Plaintiff appeals. cite: Defendant should connect himself with a former owner: 86 S. C. 358; 56 S. C. 263: cites: Ten years adverse possession ripens into title: 48 S. C. 488; 86 S. C. 292.

<p>Before Gage, J., Richland, Fall term, 1912.</p> <p>Action by Charles E. Egan and Annie Haseltine Egan against E. C. Touchberry. Defendant appeals.</p>

<p>1. Evidence. — Where one indicted! for unlawfully storing liquor testifies fully as to how he came into possession of the liquor, it is not error thereafter to rule out the bill for the liquor, which merely corroborates his oral statement.</p> <p>O. Appeal. — Where a city recorder and! a Circuit Judge concur in findings of fact on appeal from city court, their findings will not be disturbed on appeal by this Court where there is any evidence to sustain them.</p>

<p>Appeal — New Trial. — An order granting- a new trial is- not appealable in a case in which this Court cannot give judgment absolute for either party. In an action for negligent killing-, this Court cannot grant judgment absolute for plaintiff where the 'Court below has set aside a verdict in bis favor.</p>

Before Wilson, J., Hampton, Action by Council Price, and his wife, Rebecca Price, against Charleston and Western Carolina Railway Company, in court of magistrate J. G. Murdaugh. Plaintiffs appeal from Circuit order affirming judgment of magistrate.

Before Copes, J., Bamberg, March term, 1912. Action by United Grocery Company against J. M. Dannelly & Son. Plaintiff appeals. cites: Entries made by one now nonresident may be proved by proof of handwriting: 2 McC. 349; 1 Bay 40, 480; 1 McCord 305; 62 S. C. 243; 2 Ene. 607-9; 2 Wig., sec. 1521; 2 Rice Ev. 835. cite: Account books must be produced in Court: 2 Bail. 394; 11 S. C. 239; 14 S. C. 444; 56 S. C. 442; 63 S. C. 572; 87 S. C. 430.