Volume 94 — South Carolina Reports

<p>Limitation of Estate — Fee Simple — A deed containing after the description a provision that grantee shall provide a home for grantor and his unmarried daughter, and that if grantee should die without heirs then this deed shall become null and void, the habendum and warranty being in usual form, carries to grantee a line simple subject to the provisions made for grantor and his daughter.</p>

Before Rice, J., Dorchester, November 20, 1912. Action by Decimus C. Barbot, as executor Christina P. LeBleux, against Fannie B. Thompson.

Before Witson, J., Sumter, February, 1910. Action by Katy Brunson against Washington Brunson. Defendant appeals. The allegations in the complaint are made in the usual' affirmative form, except those in paragraph 8 are made on information. The verification is that the facts stated in the complaint are true, except as to those stated on information and belief, and these she believes to be true.

<p>Before Shipp, J., Florence, March, 1912.</p> <p>Action by Ella F. Jones against A. H. Williams & Co., C. M. Kelly and O. T. Flail, of whom A. H. Williams & Co. and C. M. Kelly appeal.</p> <p>The application is untimely and plaintiff is guilty of laches: 36 Cyc. 695; 14 S. C. 434; 21 Ency. P. &. P. 53; 1 Barb. Ch. Pr. 60; Dan. Ch. Pr. 1523; 1 Hoffman’s Ch. Pr. '398; Story Eq. PI., see. 3380; 45 Eed. R. 299, 695; 57 Barb. 582; 41 N. J. Eq. 407; 47 S. C. 190; 31 Cyc. 501; 60 S. C. 477; 60 S. C. 135, 477; 21 Ency. P. & P. (c). Order zúas error of lazu: 5 S. C. 450. Plaintiff did not act in good faith, and granting motion zuas abuse of discretion: 16 Cyc. 444; 38 S. C. 228; 21 Ency. P. & P. 61. Supplemental complaint sets up a different case not in aid of original action: 14 S. C. 434; 3 Strob. 190; 21 Ency. P. & P. 20-1; 31 Cyc. 503.</p> <p>Filing a supplemental complaint is zuithin discretion of Circuit Judge: 60 S. C. 135; 28 S. C. 172.</p>

<p>1. Jurisdiction — New Trial. — A special Judge commissioned to hold a regular term of Court in two counties has no jurisdiction to grant a new trial in a case in which he granted a nonsuit in open Court, after he had adjourned his last Court sine die and after the expiration of the time for holding' Court in that county, no motion for new trial having been made by either party at any time, and no notice having been given of the intention of the Judge to make the order.</p> <p>2. The appeal in this case having been dismissed by Circuit Court, defendant is given the right to prosecute it after time.</p>

Before Wilson, J., Williamsburg, June, 1912. Indictment against Hoyt Parnell. Defendant appeals. Construction of words susceptible of more than one meaning: 3 Hill 99; Potter’s Dwar. St. 279; 36 Cyc. 1172, 1179; 23 Ency. 361. Doubt should be resolved in favor of defendant: Potter 130, 246; 26 N. Y. 523; 36 Cyc. 1186; 1 Whar. 44; 36 Cyc. 112; 23 Ency. 346, 349, 350; 12 Wheat 270; 19 N. J. 245. How to' gather intention of lawmakers: Bish. on Stat.

<p>Before Ernest Gary J., Kershaw, Summer term, 1912..</p> <p>Indictment against Sadie Moody and Ernest Moody.. Defendants appeal on the following exceptions :</p> <p>1. “It is respectfully submitted that his Honor erred in allowing the attorney for the prosecuting witness, employed, to assist the solicitor, over the objection of the defendants’ counsel, to discuss before the jury details of the fight, between the prosecuting witness, Bowen, and one Brannon,, in which the father of the defendants was engaged, and out of which this difficulty arose; and to< draw therefrom inferences to the effect that said father of the defendants, A. E. Moody, was in fault in said difficulty; after having-refused to allow defendants’ counsel to produce evidence of' said details, tending to show that the defendants’ father was not in fault, but was acting as peacemaker, when unjustly assaulted by the son of the prosecuting witness.</p> <p>2. “It is respectfully submitted that his Honor erred in interposing during his charge to the jury trying this case, in receiving the presentment of the grand jury, by delivering to them in the presence of this jury, general statements in regard to their duty as grand jurors, laying special stress on the crime of shooting of one citizen by another, shooting being the crime alleged to have been committed by these defendants. Said remarks being of a nature, and delivered at a time which had a tendency to prejudice the jury trying these defendants for a like alleged offense.</p> <p>3. “It is respectfully submitted that his Honor erred in sustaining the objection of the solicitor to questions asked <on cross-examination by defendants’ counsel of the prosecuting witness, Bowen, as to the cause of the fight immediately preceding the difficulty in which these defendants were engaged, as tending to support the defendants’ contention that the prosecuting witness attacked them, and not they him. Said testimony being offered in the following manner: ‘You and Mr. Brannon that day had had trouble at the ginhouse? Yes, sir. What was that trouble about? A lie was told. By whom? I got it too hot, .and got to fighting on the thing. What was the lie? Solicitor Cobb: I object. The Court: Objection sutained.’ We respectfully submit that said question was relevant in that it was for the purpose of showing the state of mind of the prosecuting witness, and showing a motive, not only for his attack on Brannon at the ginhouse, but also upon these defendants.</p> <p>4. “It is respectfully submitted that his Honor erred in refusing to allow the prosecuting witness to answer questions propounded to him as follows: ‘You have been arrested several times ? Only once. What was that for ? I can tell it? Solicitor Cobb: I object. The Court: Irrelevant. Mr. DePass: You got into trouble about some act. The Court: You can prove previous difficulties, but cannot go into details. Mr. DePass: What was the difficulty you had with Mr. Carrison over there? Solicitor Cobb: I object. 'The Court: If he had a fight with him you can prove that, but that is as far as you can go. Only relevant in a plea •of self-defense.’ We submit that said evidence was material .and relevant to test the veracity of the prosecuting witness, and in failing and refusing to allow same was highly •prejudicial to these defendants.</p> <p>5. “It is respectfully submitted that his Honor erred in charging the jury as follows: Tn ascertaining whether or not the defendants or either of them is guilty of assault and battery with intent to kill, the inquiry is, suppose they had killed him, would it have been murder, manslaughter or self-defense? If it would have been murder, then they are guilty of assault and battery with intent to kill.’ The error being in charging the jury, as to both the defendants, when the evidence clearly shows that the defendant, Ernest Moody, did not do the shooting, or any other act of assault and battery, but that the gun was taken from him by the defendant, Sadie Moody, who' did the shooting. Hence in no sense should his case be submitted to the jury upon the same footing as that of the defendant, Sadie Moody; the defendant, Ernest Moody, having been charged as a principal in the indictment, and the evidence having shown that he was not a principal, it was error to submit his case to the jury as such.</p> <p>6. “It is respectfully submitted that his Honor erred in defining self-defense to the jury as follows: ‘The law says to give one that privilege and excuse him under a plea of self-defense, he must be without fault' himself; the next is, that there must have been a necessity to strike. You take the facts in this case, was it necessary to shoot him; for what was it necessary? To save themselves from serious bodily harm?’ The true rule being, not that there must be an actual necessity to strike or shoot, but that the circumstances must be such that a reasonably prudent man, acting under similar circumstances, would believe it to be necessary to strike or shoot in order to save himself from death or serious bodily harm.</p> <p>7. “It is respectfully submitted that his Honor erred in charging the jury as follows: ‘Were they assaulted with a pistol? Was either one shot at? If he was not, what was there for him to defend himself against? If not in danger if there was not any assault, if he was not assaulted, what is there to defend?’ Said charge being upon the facts ■of the case, and, therefore, in violation of the constitutional prohibition, prohibiting the Judge to charge upon the facts, •or express his opinion of the facts to the jury. And it was further erroneous, in that said remarks, in connection with that part of the charge which immediately followed them, tended to impress the jury with his Honor’s opinion •of the facts at issue.</p> <p>8. “It is respectfully submitted that his Honor erred in ■charging the jury as follows: ‘Would it have been murder if they had killed him? If it would, then they are guilty ■of assault and 'battery with intent to kill.’ The error being in not defining murder to them here, or in any part of his charge. Such failure being in reality a failure to define ■assault and battery with intent to kill, that being the main -.issue in this case.</p> <p>9. “It is respectfully submitted that his Honor erred in submitting the case against the defendant, Ernest Moody, when there was not sufficient testimony to sustain the charge .as to him.</p> <p>10. “It is respectfully sumitted that his Honor erred in refusing to set aside the verdict of the jury, and in sentencing the defendants thereon, each to one year in the penitentiary, when the evidence, failed to sustain the charge against at least one of them, Ernest Moody, and, therefore, was ■erroneous, the verdict being a joint finding as charged.”</p> <p>Error for ■attorney to discuss details of previous difficulty: 75 S. C. 342; 183 N. Y. 464; 39 So. 923; 43 So. 312. Right of ■cross-examination: 64 C. C. A. 180; 99 Inch 308; 99 N. Y. '61; 32 La. Ann. 349. Testing veracity of witness: 56 S. 'C. 524; 34 S. C. 16. Jury should have been instructed as to difference between principal and one assisting: 36 S. C. 524. The lazv of self-defense: 13 S. C. 464. Charge on the facts: 47 S. C. 488; 5 S. C. 69; 21 S. C. 595.</p> <p>Charge to grand jury could not affect appellant: 88 S. C. 162. Details of previous difficulties are incompetent: 21 Ency. 218; 68 S. C. 464; 6 Ency. Ev. 721; 12 Rich. 430. Acts of violence do not necessarily affect credibility: 68 S. C. 420. Lazo of self-defense: 38 S. C. 594. Not necessary to define murder in charge in this case: 83 S. C. 251; 87 S. C. 532.</p>

Before Gary, J., Kershaw, July, 1913. Indictment against R. B. Elliott. Defendant appeals. A parol gift of land where donee enters and makes improvements will be upheld in equity: 13 A. & E. Ann. Cases 493. In alleging fraud, facts should be stated: 65 S. C. 179. A wrongful official' act does not constitute official misconduct: 7 A. & E. Ann. Cas. 773. Official misconduct: 7 Rich. 368; 65 S. C. 178.

<p>Before Spain, J., Richland, March term, 1912.</p> <p>Intervention by IT. E. York, In re Southern Ry. Co., against D. A. Weaver in court of magistrate S. I. Riley. From Circuit order affirming magistrate judgment, intervenor appeals.</p>

Before Wilson, J., Williamsburg, June, 1913. Petition 'by John T. Bryan for writ of mandamus against J. N. Hammett, J. J. B. Montgomery and P. M. Brockington, as the auditing board of Williamsburg county.

Before Memminger, J., Charleston, August, 1912. Action by Kate Fitzgerald, as administratrix of John Fitzgerald, against J. I. Case Threshing Machine Company. Defendant appeals. Provision preventing motion for continuance is illegal: 50 S. C. 408. The order zvas within discretion of Judge: 38 S. C. 556; 36 S. C. 578, 5 S. E. 478.

<p>Before Prince, J., Charleston, October, 1912.</p> <p>Action by Kate Fitzgerald, administratrix of John Fitzgerald, against J. I. Case Threshing Machine Company. Defendant appeals.</p> <p>Party served was not engaged in service of appellant when served: 61 S. C. 361; 83 S. C. 224; Code 1902, 847; 25 S. E. 947. Motion for leave to answer did not give Court jurisdiction of defendant: 61 S. C. 512; 73 S. C. 292; 69 S. C. 278; 62 S. C. 533.</p> <p>Where party makes a general appearance, he waives the right to contest the service: 46 S. C.'9; 61 S. C. 520;'69 S. C. 278; 73 S. C. 296; 78 S. C. 507; 3 Cyc. 507.</p>

<p>1. Wilfulness — Punitive Damages. — That a motorman ran a car faster than prohibited by city ordinance will support punitive damages.</p> <p>2. Charge — Carrier—Engineer.—In this case a request that an engineer of a railroad is not required to be such an expert in psychology as to be able to read the mind of a traveler approaching a highway crossing as to be able to foretell that he will not use common prudence in getting off the track, does not apply.</p> <p>3. Exceptions not argued are deemed abandoned.</p>

Before Memminger, J., Lexington, December, 1911. Action by Matilda Kleckley et al. against R. T. Hook. Plaintiff appeals. Plaintiff having testified as to the transactions, defendant’s evidence is competent: 55 S. C. 328; 32 S. C. 359. A contract to purchase for another, is not a contract of sale: 27 S. C. 1; Jones on Mtgs., secs. 323, 331; 97 N. S. 624; 41 Wis. 100; 77 Pa. St. 134; 5 Bart. 63; Story Eq. Jur., sec. 1201a. As to improvements: 77 S. C. 515.

<p>Before Gage, J., Laurens, January, 1912.</p> <p>Action 'by Virginia-Carolina Chemical Company against G. Wash Hunter, Sarah Ellen Evans, and Cole. L. Blease. Defendants appeal.</p> <p>Proof required to show a deed is mala fide: 56 S. C. 169; 64 S. C. 364; 20 Cyc. 552-3, 601.</p> <p>Badges of fraud: Bump, on Fraud. Con., secs. 41, 42; 20 S. C. 231; 52 S. C. 132, 475; 41 S. C. 428; 75 S. C. 338; 56 L. Ed. U. S. 1080; 20 Cyc. 44, 449. Badges of fraud in chattel mortgages: 51 S. C. 43; 20 S. C. 20, 514; 26 S. C. 110, 336; 82 S. C. 368; 48 S. C. 405; 20 Cyc. 440; Rich. Eq. Cas. 430. Failure to produce evidence: 20 Cyc. 450, 753; 16 Cyc. 1062.</p>

Before Mfmmingfr, J., Anderson, February, 1912. Action by Anderson Hardware Company and Brown & McCown against J. A. Gray, Laura Gray and Henry Gray. Defendants appeal.

Before Memminger, J., Oconee, March term, 1912. Action by J. A. Koozer against C. -H. Ellison. Defendant appeals. Issue of conspiracy is for jury: 85 S. C. 278; 6 Ency. 864, 865. All facts and circumstances relating to the conspiracy are competent: 6 Ency. 868; 1 Green., secs. Ill, 233.

<p>Before Copes, J., Hampton, September, 1913.</p> <p>Action by M. V. Youmans against W. F. Youmans et al. Defendants appeal.</p> <p>58 S. C. 380; 44 S. C. 399.</p> <p>55 S. C. 343; 32 S. C. 214.</p>

Before Ernest Gary, J., Richland, June, 1912. Indictment against William E. Martin fo-r murder. He appeals. As to evidence of declarations after the shooting: 61 E. R: A. 495. Error to state to jury that Martin had killed Harris: 85 S. C. 268; 31 S. C. 235; 15 S. C. 392; 28 S. C. 225; 47 S. C. 513; 51 S. C. 459.

Before Prince, J., Greenville, June term, 1912. Action by S. J. Campbell against Southern Railway Company. Defendant appeals. Held: presented and used by the plaintiff in conformity with the contract printed and written upon said ticket, signed by the plaintiff, and made a part thereof. 2. “That the plaintiff purchased said ticket at a reduced rate, less than the regular rate of fare upon the- various lines of railroad stated thereon, in consideration of the…

<p>Before Ernest Gary, J., Richland, May, 1913.</p> <p>Action by J. Q. Miller against Seaboard Air Line Railway. Plaintiff appeals.</p> <p>1 T'homp. on Neg., sec. 968; 61 S. C. 558; 67 S. C. 508; 82 S. C. 324.</p> <p>67 S. C. 499; 68 S. C. 483; 72 S. C. 389; 82 S. C. 321; 75 S. C. 292; 86 S. C. 106 ; 90 S. C. 331.</p>

Before Memminger, J., Oconee, March, 1912. Action by Neville Bros, against J. R. Kelley in court of magistrate J. E. Hopkins. Defendant appeals. Verdict does not conform to lazo: 29 S. C. 290; 42 S. C. 127; 66 S. C. 424. Exception too general: Rule V; 80 S. C. 312. Circuit Court may give judgment on merits: Code 1912, 407; 80 S. C. 522; 87 S. C. 560; 88 S. C. 60.

<p>Before Wirson, J., Clarendon’, June, 1912.</p> <p>Indictment against Robert Brown. Defendant appeals.</p>

Before Rice, J., Aiken, June term, 1912. Indictment against James G. Seigler.

<p>Before Gage, J., Richland, October, 1912.</p> <p>Action by H. G. Thomas against Christopher Atkinson in court of magistrate James H. Fowles, Jr. Defendant appeals.</p> <p>Defendant not being in possession of checks at time of suit and not having zvrongfully parted with them is not liable: 42 S. C. 35; 80 Am. St. R. 736. Question of title to checks is not involved here: 60 S. C. 108; 23 N. Y. 264. Plaintiff having no license to solicit should not recover: 20 S. C. 437. Verdict should be in alternative: 20 S. C. 11; 18 S. C. 386.</p> <p>One may maintain a suit on a contract made for his benefit: 2 Bail. 55; 1 Dud. 332; 1 Rich. 268; 3 Strob. 196; 61 D. R. A. 509 ; 1 Rich L. 268; 5 A. & E. Ann. Cas. 435. Atkinson held the checks as trustee: 61 E. R. A. 509; 5 A. & E. Ann. Cas. 435.</p>

<p>Railroads — Interstate Commerce — Conflict of Laws — Limited Liability Bills of Ladino. — In this case this Court held that a statute of the State of Virginia construed by the Supreme Court of that State, to declare invalid limitation of liability for negligence, applied in an interstate shipment of horses from that State into this under a limited valuation bill of lading for the reason that the acts of Congress did not cover the subject and for the further reason that the defendant has not shown by allegation and proof that he has complied with the provisions of the Federal statutes, but while the remittitur was held up on petition for rehearing, the United States Supreme Court held in the cases of Adams Express Co. v. Croninger, Chicago etc. Ry. Co. v. Latta and Chicago etc. Ry. Co. v. Miller, 226 U. S. 491, that the Federal acts applied in such cases, and this Court being bound by the said decisions now reverses its former judgment, and holds that in an interstate shipment, the consignee can only recover for injury to horses by negligence, the amount stipulated in such bill of lading as the value thereof.</p>

<p>1. Insurance — Issues.—There being evidence in this case in support of the finding by the Circuit Court that the insured came to his death by means of a casualty which produced sickness continuing up to his death and the issue being one of fact in a law case, the judgment is not disturbed.</p> <p>2. Ibid. — Pleadings.—That failure to give notice of a casualty forfeits a policy of casualty insurance is an affirmative defense and must be pleaded.</p>

<p>Chattel Mortgage — Cottox.—“One 500-pound bale of cotton to be grown in the year 1911 on lands of H. in Oconee county adjoining lands of A. and others where I now live,” is not void for want of certainty in a chattel mortgage as against a junior mortgage.</p>

Before Sease, J., Abbeville, March term, 1913. Action by Cable Piano Company against Southern Railway Company. Defendant appeals. Evidence as to settlement should have been excluded before argument on it: 1 Elliott 340'; 50 S. E. 478; 75 S. E. 541. Contributory negligence of plaintiff relieves defendant: 53 Am. R. 619; 63 S. E. 306; 41 S. E. 464. Meaning of gross negligence: 18 S. E. 178; 80 Am. St. R. 158; 39 Cyc. 433.

<p>1. Railroads — Negligence—Issues.—Whether it is negligence in using a railroad spike for a bolt in riveting a frog plate is a question of fact.</p> <p>2. Expert Evidence. — A prudent man is not disqualified as an expert in a line of work because he has never done a particular piece of work in the manner alleged to be dangerous.</p> <p>3. Railroads — Master and Servant — Risks.—Whether the danger of a spike head flying when cut off with a cleaver is an ordinary risk assumed by the servant is a question of fact.</p> <p>4. Master and Servant — Contributors Negligence. — That a tool is placed by the representative of the master and by him the servant is directed how hard to strike do not make a conclusive case of contributory negligence where the inference might be drawn from the evidence that the master knew the clanger and the servant did not.</p> <p>5. Railroads — Negligence.—If in this case the Court had charged that a railroad spike is not an unusually dangerous tool or appliance, he would 'have charged that there was no negligence in substituting a spike for a rivet.</p> <p>6. Evidence. — That a section master some months before an accident had noticed a defect in a frog plate is competent on the issue of emergency in repairing the plate.</p> <p>7. Idid. — Railroads.—Remonstrance of section master with road master against an appliance, immediately before its use is competent on the issue of wilfulness.</p>

Before Wirson, J., Aiken. Indictment against Philip- P. Tóale. Defendant ap-peals. Deed should have been produced before testified to: 4 Rich. 356; 9 Rich. L. 438; 3 Speer 711; Code 1913, 3735-6; 37 S. C. 363; 3 Bail. 338. Terms of a mortgage could not be varied by parol: 33 S. C. 343. The evidence in parol as to the deed was competent: 61 S. C. 166; 65 S. C. 1; 77 S. C. 103; 33 S. C. 170.

Before Gage, J., Union, May, 1912. Action by Jeannette Hill May et al. against Margaret S. Thomas et al. The report of the special master, J. G. Hughes, is: “This is the second report made in this case, the first report being dated June 20, 1910, and being on file in the office of the clerk of the Court for this county, which report determined, among other special matters under the order o-f reference, the interests of the various parties to- this action.

Before Gage, J., Spartanburg, March term, 1912. Action !by G. W. Ould against Spartanburg Realty Company. Defendant appeals. Issue of damages zvas for the jury: 99 Pac. 586; 72 At. 301, 695. Right of defendant to retain the money paid: 67 S. C. 462; 90 S. C. 490. What is a reasonable time: 10 Rich. 423; 30 Minn. 415; 5 Fed. Cas., No. 2932; 5 Md. 121; 9 Ency. P. & P. 379, 385; 9 Cyc. 613.

<p>Before Sease, J., Union, May term, 1912.</p> <p>Action by Ducindy A¥. Webber against the town of Jones-ville, John T. Scott, John M. Gault, Geo. H. Fairbanks, F. M. Ellerbe and John C. Mobley. Defendants appeal.</p> <p>If evidence is not sufficient to bind one party, new trial should be granted as to all: 73 S. C. 181; 83 Ind. 133; 16 Fed. R. 839; 1 Tenn. 363; 4 Humph. 373. On allegation of specific negligence, evidence of other negligence is incompetent: 45 S. C. 376.</p> <p>After argument and instructions it should be assumed jury did not intend to find against town for damages: 47 S. C. 35S. Scott is liable for punitive damages: 65 S. C. 1; 78 S. C. 116; 53 S. C. 333. Condemnation must be strictly pursued: 31 S. C. 106; 37 S. C. 387. Public officers are not excluded from rule of joint and several liability: 38 Cyc. 463, 483; 68 S. C. 55; 69 S. C. 1; 65 S. C. 341; 1 Mill 333; 1 Bay. 15; 39 Cyc. 735. New trial may be granted as to some and refused as to others: 191 111. 57; 8 la. 474; 60 Kans. 157; 103 Ky. 534; 13 Mich. 398; 67 Neb. 333; 4 ITow. Pr. 365; 3 Tex. Civ. App. 357; 10 Abb. N. Cas. 38; 631 How. Pr. 331; 173 U. S. 534. Liability of officers as individuals: 38 Cyc. 463; 106 tL S. 196; 44 S. C. 168. Instruction to agent communicated to adverse side is competent: 61 S. C. 393. Verdict should be taken as excepting the town: 47 S. C. 358.</p>

<p>Motion in the original jurisdiction.</p>

Before Prince, J., Anderson, May, 1913. Action by Julia Norman against Henry Norman. Defendant appeals. . It is better in such cases to refer the issues: 68 S. C. 123; 14 Cyc. 756. Alimony should, only be decreed where facts warrant separation: 70 S. E. 970; 14 Cyc. 754. No abuse of discretion to refuse alimony: 54 S. E. 194. Reference is optional zvith Judge: 17 Ency. P. & P. 986; 34 Cyc. 796.

<p>Before Shipp, J., Florence, September, 1912.</p> <p>Summary proceeding by O. O. Darling against J. C. Brunson and same against A. J. Hoole. Defendant, in each case, appeals.</p> <p>Title to office should be tried by regular action: 66 S. C. 7; 32 S. C. 5. General denial is a perfect defense: 44 S.*C. 242; 2S S. C. 388; 37 S. C. 520; 38 S. C. 488; 31 Cyc. 302; 44 S. C. 144; 64 S. C. 395; 40 S. C. 538; 45 S. C. 390. There is no repeal of charter of Florence by a general act: 2 S. C. 55?; 72 S. C.'532; 55 S. C. 295; 70 S. C. 63. City council cannot delegate its authority: 73 S. C. 81; 75 S. C. 232; 90 S. C. 5. Court has no jurisdiction of case after it appears party has accepted two offices: 53 S. C. 161; 32 S. C. 5; 60 S. C. 572. Board of health has no power to combine offices: 73 S. C. 81; 76 S. C. 67; 28 Cyc. 692. Board of health are de facto officers: 27 S. C. 436; 133 U. S. 21; 5 Thomp. on Corp., sec. 5800; 10 Cyc. 1135.. Accepting one office abandons one then held: 32 S. C. 5; 60 S. C. 572.</p> <p>Summary proceeding is proper for possession of books of office: 60 S. C. 612; 33 S. C. 5. Charter may be amended by general act: 48 S. C. 395. Petitioner entitled to only one office: 9 S. C. 156; 54 S. C. 286. Acts of de facto officer are valid: 118 U. S. 425; 54 S. C. 282.</p>

<p>Before Ernest Gary, J., Spartanburg, November term, 1911.</p> <p>Action by Reid Fertilizer Company against Farmers Fertilizer Company. Defendant appeals.</p> <p>Bill of lading is not conclusive between the original pa/rties: 85 S. C. 539; 4 Elliott, sec. 1420; 1 Hutchinson, sec. 164.</p> <p>Delivery of bills of lading constitute delivery: 22 E. R. A. 415. Plaintiffs remedy is against the carrier: 1 Bay. on Sales, sec. 1211; 79 S. C. 519; 76 S. C. 175.</p>

<p>1. Housebreaking — Labcexy—Chimney'.—Entering a house, for the purpose of stealing, through an opening in the wall left open is not a breaking. The exception to this rule that an entrance through a chimney is a breaking, is because the chimney is as much closed as the nature of the case permits.</p> <p>2. Ibid. — Evidence.—That it was the habit of one in charge of a building to close it up at night is competent, but that he thought he had done so on a particular night is incompetent.</p>

<p>1. Landlord and Tenant — Cropper—Real Property. — Where a cropper voluntarily abandons a crop without fault on the part of the landlord or without reasonable cause or excuse, he forfeits all interest in the crop.</p> <p>Mr. Justice Woods thinks under circumstances there should be an apportionment of profits.</p> <p>2. Charge. — A reouest to charge should not be made while the Judge is delivering his charge to the jun, but should be sent up in writing before the argument begins. When other points are suggested by the argument, requests as to them may be sent up at the close of the argument. Points suggested by the charge should be sent up at the close of the charge, at which time errors or omissions in the charge should be called to the Judge’s attention.</p>

Before Sbaisb, J., Laurens, April term, 1918. Action by Smoothing Iron Heating Company against A. B. Blakely.

<p>Before Sease, J., Union, Summer term, 1912.</p> <p>Action by T. J. Rountree against Ardella Ingle and W. F. Ingle, before J. Frost Walker, Jr., magistrate. Defendant appeals from judgment of Circuit Court.</p> <p>Cause of action is based on a lottery: Crim. Code 199; Mills 297; 14 Ency. 600, «02; 147 U. S. 449; 8 L. R. A. 671; 69 L. R. A. 505; 19 Ency. 598. No proof of cause of detention: 88 S. C. 429. No proof of demand: 89 S. C. 535; 1 McM. 428; 2 S'trob. Eq. 370; 11 Rich. 267; 45 S. C. 388; 48 S. C. 421; 60 S. C. 103.</p> <p>This action is not based on a lottery: 2 Mill 128; 1 Bail. 315; 45 S. C. 372; 3 Dess. Eq. 125; 40 S. C. 553; 25 Cyc. 1653. Whether demand was made was for jury: 27 S. C. 243-; 59 S. C. 497; 45 S. C. 388; 34 Cyc. 1406; 24Ency. P. & P. 506; Co'bbey on Rep., secs. 447, 450, 93 419; 34 Cyc. 1388-9. Not necessary to prove actual value of stove: 30 S. C. 327; 32 S. C. 171.</p>

Before Spain, J., Richland, September, 1912. Action by Alice D. Whittle against Frank G. Tompkins. Plaintiff appeals. Contract between wife and attorney as to litigation about matters personal between husband and wifeisagainst public policy: 1 Paige on Con., sec. 426; 2 Icl., sec. 428; 129 Col. 283; 5 S. C. 136; 4 Am. St. R. 836; 33 L. R. A. (N. S.) 1074; 14 Id. 1168; 58 E. R. A. 471; 21 N. Y. App.

Before Wilson, J., Dillon, March, 1912. Action by J. A. Moore against North and South Carolina Railway Company. Defendant appeals. Entry under the deed was not a trespass: 13 Rich. L. 85; 2 Hill 439; 52 S. C. Ill; 46 S. C. 439. Plaintiff’s remedy is under the statute: 62 S. C. 56; 33 S. C. 216. No recovery here for zvilfulness: 78 S. C. 419. Objection to entrance should be made in zvriting: 33 S. C. 217; 37 S. C. 386 ; 5S S. C. 534; 62 S. C. 56; 69 S. C. 516.

<p>Before Memminger, J., Greenville, April, 1912.</p> <p>Action by W. H. Moore against Greenville Traction Company. Plaintiff appeals.</p> <p>Defendant is guilty of conscious failure of duty, which warrants punitive damages: 90 S. C. 868; 74 S. C. 377; 54 S. C. 505; 71 S. E. 238; 75 S. C. 301; 71 S. E. 855; 69 S. C. 445; 75 S. C. 116. Plaintiff was a passenger: Nellis on St. Ry. Accd. E. 39, 40, 41; 6 Cyc. 536; 52 S. C. 566; 72 S. C. 134; Moore on Carriers 550-1. Court shoirtd have instructed there ivas no issue of contributory negligence: 89 S. C. 97; 61 S. C. 187, 404; 69 S. C. 445; 75 S. C. 116.</p> <p>The law applicable to plaintiff’s positions: 70 S. C. 8; 73 S. C. 12; 72 S. C. 449; 81 S. C. 434; 76 S. C. 493; 81 S. C. 347. If incompetent evidence is admitted without objection, it should not be disregarded: 32 S. W. 1139; 34 S. W. 184.</p>

<p>Evidence — De Bene Esse. — From the word “seal” written across the flap of the envelope in brackets in the same handwriting apparently as the statement written on the other side signed by the notary that it contained the deposition, and from an examination of the envelope, it is evident the notary intended to comply with the statute by his placing the deposition under his seal, and the deposition is valid.</p>

Before Spain, J., Richland, Spring term, 1912. Action by Sallie B. Wise and her husband, C. C. Wise, against Columbia Railway, Gas and Electric Company. Defendant appeals. Charge as to presumption from injury to passenger does not apply zvhen there is a dispute as to zvhether plaintiff zvas a passenger: 9 Rich. 48; 77 S. C. 434; 83 S. C. 53.

<p>1. Partnership — Accounting.—An administrator cle bonis non of sc partner in this State in a partnership business in Georgia is not necessary to wind up the partnership affairs there, nor is he a necessary party to a proceeding here for an accounting against the surviving partner.</p> <p>2. Ibid. — Ibid.—In this case there is no effort to disregard the sale of the interest of deceased partners under order of the Georgia Court, but appellant having purchased these interests at that sale for the purpose of selling out the business and having resold it, is not now in position to say he bought for his own benefit, and. the representatives of the deceased partners may follow the proceeds of sale into his hands.</p> <p>3. Ibid. — Ibid.-—Trusts.—The contract of partnership here and other proof made out a case of implied trust under which appellant is required to account for the proceeds of a copartnership business. Under the contract, he should be allowed no commissions as such or traveling expenses as such, but reasonable wages for services rendered.</p>

Before Prince, J., Saluda, August, 1912. Action by Mary E. Prater et al. against Dollie E. Prater ct al. Plaintiffs appeal.

<p>1. Carrier — Passenger,-—It is the duty of the carrier to furnish its passengers with seats and the remedy of the passenger for failure to do so is suit for damages for breach of contract.</p> <p>2. Ibid. — Ibid.—Defense.—That the demand on the carrier for facilities is so sudden and unexpected that it could not have anticipated it and furnished sufficient accommodations should be set up as a defense. Here such defense was not set up and there was no evidence tending to prove it.</p> <p>3. Ibid. — Ibid.—Punitive Damages. — Failure of the carrier to furnish seats for passengers under circumstances which show the carrier had every reason to know the accommodations' furnished were not sufficient will support punitive damages.</p> <p>4. Ibid. — Ibid.—Ibid.—Abusive Language. — Punitive damages may be awarded a passenger for language used by the conductor to him when he demanded a seat before giving up his ticket, which is calculated to insult, humiliate or wound the feelings of a person of ordinary sensibilities and was so intended.</p> <p>Mr. Justice Fraser, with whom concurs Mr. Justice Woods, thinks the language used here does not warrant punitive damages.</p>

Before DeVorE, J., Florence, April term, 1912. Action by J. W. Plolliday against G. FI. Pegram & Co. Plaintiff appeals. Plaintiff is entitled to verdict for contract price: 59 S. C. 581. Jury should find what agreement had been made: 19 S. C. 367. Parol evidence is admissible where contract is not wholly in writing: 54 S. C. 314. Ridings of Supreme Court on former appeal are res adjudícala: 93 S. C. 148. There is no contract here until written draft is signed: 41 Am.

Before Rice, J., Aiken, August, 1912. Action by W. L. Rawl against American Central Insurance Co. Plaintiff appeals. Under the agreement as to the policy the insurer is estopped from saying Rawl is not a party to the contract: 48 S. C. 195; 67 S. C. 399; 74 S. C. 246; 13 Ency. 165, 172; 138 Am. R. 175; 5 Wall. 509. Mortgagee must stand or fall on rights of mortgagor: 39 A. S. R. 906; 54 N. E. 774; 66 A. D. 412; 10 Wall. 38.

Before Rice, J., Bamberg, July, 1913. Action by S. S. Ray against Southern Ry. Co. in court of magistrate S. G.'Ray. Defendant appeals. Plaintiff must recover whole amount of claim filed to entitle him to penalty: 83 S. C. 309, 470; 73 S. C. 483; 80 S. C. 534; 83 S. C. 307, 375; 89 S. C. 419. As to the construction of the penalty statute: 36 Cyc. 1106, 1138, 1137, 1163. Freight is not necessary part of claim: 73 S. C. 543.

<p>1. Charge. — While it is better for a Judge in charging a jury not to-refer to other cases agitating the public mind, in this case, the reference to the Beattie case of Virginia to illustrate the difference between pleading a defense and proving it, was not prejudicial.</p> <p>2. Ibid.' — In the connection used it was not error to charge: “So I say in the trial of a case you can disregard a plea of self-defense if -it does not come up to your idea of reason. But you can act on it by your judgment, and you tell the Court what your judgment is.”'</p> <p>3. Ibid.- — Self-Defense.—The charge here complained of is not erroneous in that it did not cover the point in self-defense that the defendant had the right to act on appearances, as the instruction was, if defendant believed it was necessary to strike to save himself from serious bodily harm or death, and in the opinion of the jury a man of ordinary courage and fairness would have been justified in so believing.'</p>

<p>Before C. J. Ramage, special Judge, Dillon, November, 1912.</p> <p>Action by Allen Surles against D. McLaurin et at. Defendant McLaurin appeals.</p> <p>3 Rich. Eq. 271, 384; 1 Rich. Eq. 411; 2 Strob. Eq. 174; 13 S. C. 115; 65 S. C. 345; 67 S. C. 307; 48 S. C. 440.</p>

<p>1. Charge. — In an action for damages for enticing a servant from his employer for the Judge to say “in a case of this kind enticement is the inducement” should not be construed to mean the Judge thought the case made out.</p> <p>3.Wileulness may be inferred where the wrongdoer does not actually realize that he is invading the right of another, if the act committed is done in such a manner that a person of ordinary reason and prudence would say it was a reckless disregard of another’s rights.</p> <p>3. Appeal. — An objection to the use of the word “sue” in a charge where obviously used for “recover” is drawing the point too fine.</p> <p>4. Charge. — An instruction, in this action, clearly referring to a right of action between master and servant, is not prejudicial.</p> <p>5. Appeal — Jurisdiction.—This Court cannot reverse a judgment on the ground that the verdict is contrary to the preponderance of the evidence.</p>

<p>Before Gage, J., Spartanburg, April, 1913.</p> <p>Action by H. R. Black et al., against Arthur O. Simpson. Defendant appeals.</p> <p>Remedies of persons defrauded: 1 Strob. 396; 56 S. C. 514; 79 S. C. 208; 20 Cyc. 87; 14 Ency. 162. Joinder: 24 S. C. 40; 1 Rich. L. 269; 1 S. E. 247; 20 Fed. 425; 104 U. S. 245; 15 Barb. 375; 1 Par. Eq. Cas. 501; 36 N. J. Eq. 313; 10 Ohio 235; 70 Am. Dec. 309; 19 Wis. 93; 18 Wis. 566; 65 Barb. 501; 112 N. W. 668; 12 Ind. 353; 73 N. E. 625; 9 N. W. 263; 15 N. W. 559; 30 N. W. 905, 175; 12 Ga. 189; 46 la. 323; 50 la. 322; 70 Ky. 513; 34 N. J. Eq. 341; 25 Ind. 523; 37 Am. St. R. 86; 27 S. E. 259. Tender of money paid for stock: 56 S. C. 513; 61 S. C. 455; 17 S. C. 239. Duty of officer to inform stockholders: 2 Thomp. on Corp., sec. 2721; 64 Am. D. 661; 44 Ind. 509; 67 Tenn. 108; 52 Barb. 581; 23 Fed. 625; 106 Am. St. R. 175; 43 La. Ann. 45; 10 Cyc. 796; 21 Ency. 898; 23 At. 427; 73 Pac. 696.</p> <p>Joinder of plaintiff: 26 S. C. 478; 43 S. C. 66; 49 S. C. 192; Bliss on Code Plead., secs. 73, 80; 30 Cyc. 44, 135. Plaintiffs are not required to tender ■money paid for stock: 52 S. C. 244; 86 S. C. 576; 45 A. E. 232. Complaint states a cause of action: 105 Am. St. R. 178; 2 Pom. Eq. Jur., sec. 1090; 62 N. H. 537; 168 N. Y. 157; 10 Cyc. 787, 791, 965; 87 S. C. 301. As to unnamed parties: 54 S. C. 440; 30 S. C. 483.</p>

<p>Before DeVore, J., Greenville, September term, 1912.</p> <p>Indictment by the city of Greenville against Mamie Ward.</p> <p>From Circuit order reversing judgment of recorder, the city appeals.</p>

Before Memminger, J., Oconee, March term, 1913. Indictment against Ernest Mulwee for murder of Sam Hyde. Defendant appeals. Law changing kind and place of punishment after crime is an ex post facto law: 8. Cyc. 1030; 38 Pac. 816.

<p>1. Evidence — Opinion.—After a witness lias described the place and his testimony tends to show his injury was caused by the unsafe condition of the right of way, it would not be prejudicial for him to state that in his opinion it would not otherwise have happened.</p> <p>2. Master and Servant.' — The master is liable for injuries caused by the misfeasance or nonfeasance of the servant, not because of any privity between such third person and the master, but because of the privity between the servant and the master.</p> <p>3. Evidence — Contradiction.—A witness may testify as to what he saw contrary to what a witness previously swo-rn says he saw, but not as to what such witness said, without laying ground for contradiction.</p> <p>4. Master and Servant — Railroads—Conductor.—Under the evidence in this case that a freight conductor stepped from the engine of his train on a round pin on the right of way which turned and threw him under the wheels, it cannot be said 'the only reasonable inference from the evidence is that there was no negligence on the part of master in furnishing the servant a safe place to work.</p> <p>5. Ieid. — Ibid.—Ibid.—Issues.—Whether a conductor was negligent in jumping from a slowly moving freight engine, and what was the proximate cause of his injury were for the jury.</p> <p>6. Railroads — Enoineer—Issues.—Whether it is a violation of the rule of a railroad company requiring a freight conductor to ride in his caboose except in cases of necessity, for him to ride on the engine from one station to another to save time when he is behind his schedule is- for the jury.</p> <p>7. Master and Servant — Safe Place — Charge.—To instruct the jury that it is not an act of negligence for a railroad company to permit a bolt to lie loose upon its roadbed at a station, unless it had knowledge of the presence of the bolt and failed to remove it, would be error.</p> <p>S. Negligence — Charge.—If the Judge states in detail to the jury what acts constitute negligence, be would charge on the facts.</p> <p>9. Pleadings — Evidence.—Under allegations of grievous and long- continued pain, incapacity for work, maimed, permanently injured, prevented from pursuing any active calling- in life and other hurts, evidence as to impairment of sexual powers is competent.</p> <p>10. Appeal. — An exception not based on grounds of objection appearing-in the record will not be considered.</p>

<p>Before Wieson, J., Hampton, November, 1912.</p> <p>Action by A. M. Gibbes, trading as Gibbes Machinery-Company, against J. T. Rivers, in court of magistrate J. G. Murdaugh. From Circuit order affirming magistrate judgment plaintiff appeals.</p>

<p>1. Re-foebiation of Deeds. — In an action to re-form a deed conveying- a life estate to one possessing- a fee simple, the plaintiff must show a contract between the original parties to the deed to convey a fee simple. A full and fair price has never been held to be conclusive of an intention to convey the fee. Can laches apply in such a case? Mn. Justice Woods thinks under the evidence the deed should be re-formed.</p> <p>2. Evidence — Tkansactiojts With Decedeftts. — A grantee, who has conveyed the land by warranty deed, cannot be made a competent witness as - to a sale of the land to him by his deceased grantor by release from his warranty pending the suit in an action by a subsequent grantee against the heirs at law of grantor to re-form the deed.</p>

Before Gage, J., Richland, September, 1912. Action by John J. McMahan against A. W. Jones, as Comptroller General, H. W. Richardson and F. W. P. Butler. Plaintiff appeals. Appointment by board of its own members to office is against public policy: 25 Stat. 156; Meecheen Pub. Off., secs. 112, 120; 31 E. R. A. (N. S.) 575; 33 Barb. 291; 60 S. C. 558; Code 1902, 2002; Crim. Code 224; Throop. on Pub.

Before Memminger, J., Greenville, March term, 1912. Action by Sammons and Bishop against The American Home Fire Insurance Company and G. W. Williams. Plaintiffs appeal. The defendant moved for nonsuit and directed verdict on the following grounds: “No-w, as I understand it, our Court has held that a contractor has an insurable interest in such a structure as that for one of two purposes.

<p>1. Infant — Negligence—Presumptions.—Proof that a child five years old fell into a ditch in a street left unguarded in which a lot of trash had been dumped and set on fire, by presumption, proves lhat his injury-was not brought about by his own negligent act.</p> <p>2. Cities and Towns — Negligence.—A municipal corporation is liable for injury to one lawfully using a street by falling in a ditch negligently unguarded, whether the ditch be on the extreme edge of the street or in it.</p> <p>3. Ibid. — From evidence' that a driver of a city cart dumped trash into an open ditch in a street and set fire to it, which burned for a week, it may be inferred the city authorized the act.</p>

<p>Petition in the original jurisdiction of this Court by Phoenix Mutual Life Insurance Company for writ of mandamus against Pitz H. McMaster, as insurance commissioner.</p> <p>134 U. S. 232, 594; 142 U. S. 339; 115 U. S. 337.</p>

<p>Petition in the original jurisdiction of this Court by Louis Sherfesee and Frank F. Covington for writ of mandamus against Fitz H. McMaster, as Insurance Commissioner of South Carolina.</p>

<p>Before Memminger, ]., Charleston, 1013.</p> <p>Action by Eliza Coley against J. M. Coley. Plaintiff appeals.</p> <p>As to the payment of the debt: 18 S. C. 431.</p> <p>As to payment of mortgage: 18 S. C. 431. As to attorney’s fees: 84 S. C. 463.</p> <p>As to attorney’s fees: 84 S. C. 462; 28 S. C. 313; 33 S. C. 285; 13 S. C. 485; 71 S. C. 425; 37 S. C. 200; 50 S. C. 303; 71 S. C. 302; 62 S. C. 186; 71 S. C. 258.</p>

Before Rice J., Sumter, March, 1912. Action by James A. Miller against Atlantic Coast Line R. R. Co., James W. Sellers, William Rhett and William Woods.

Before Memminger, J-, Greenville, March term, 1912. Action by Cleveland & Williams against P. S. Butler. Defendant appeals. After plaintiff has abandoned the cause of action on an express contract there was left no allegation on which recovery could be had: 9 Cyc. 748, 749, 750; 3 Hill 223; 48 S. C. 298; 84 S. C. 73; 87 S. C. 250; 87 S. C. 84. A quantum meruit cause of action is alleged: 21 S. C. 599; 70 S. C. 178, 377; 74 S. C. 222.

<p>Before Prince, J., Edgefield, March term, 1912.</p> <p>Action by J. C. Blount against Charleston & Western Ry. Co. Defendant appeals.</p> <p>Not a violation of the master’s duty to have a slick step: 72 S. C. 399; 2 Words and Phrases, 1932; 66 S. C. 257, 534; 21 S. C. 94; 69 S. C. 529; 69 S. C. 480. Plaintiff’s injury due to risks assumed: 80 S. C. 238; 72 S. C. 242; 65 N. E. 818; 47 N. E. Ill; 43 N. E. 94; 36 N. E. 789; 53 N. E. 137; 58 N. E. 180; 38 N. E, 500; 47 S. E. 117.</p> <p>It is duty of master io furnish safe place: 26 Cyc. 1097; 68 S. C. 55; 69 S. C. 10.1; 66 S. C. 387, 520; 61 S. C. 468; 52 S. C. 438; 86 S. C. 301. Knowledge of defect by employee will not defeat recovery: 08 S. C. 55; 86 S. C. 301, 441. Duty of -flagman to obey: 84 S. C. 391; 68 S. C. 55; 73 S. C. 502. Contributory negligence does not apply: 56 S. C. 91; 84 S. C. 391; 73 S. C. 502. A slick step is not a safe place: 90 S. C. 459; 97 App. Div. 43; 81 Pac. R. 977.</p>

<p>Information by the Attorney General, J. Eraser Lyon, charging B. B.- Evans with conduct requiring his disbarment.</p> <p>The facts must be proved beyond a reasonable doubt: 16 S. C. 435; 37 S. C. 468; 83 Am. St. R. 803; 64 S. O. 461; 89 S. C. 362. Conduct to disbar must lead to a bad or fraudulent motive: 64 S. C. 461; 66 Pac. 545; 86 111. 151; 109 Pac. 260; 40 E. R. A. 805.</p> <p>Information should be sivorn to: 2 Am. St. R. 858, note; 9 Wheat. 529; 32 Ark. 157; 4 Cyc. 913 ; Weeks on Attys. 180 ; 64 S. C. 476.</p>

<p>Before Memminger, J., Anderson, February term, 1912.</p> <p>Action by Rebecca J. and William Ellison against Green-ville, Spartanburg and Anderson Railway. Defendant appeals.</p> <p>Assent to enter may be implied: 15 S. C. 403; 37 S. C. 382; 28 S. C. 400; 47 S. C. 465; 11 Rich. 239; 15 S. C. 483; 33 S. C. 477. Special findings shall govern: Code Proc. 322; 38 Cyc. 1927.</p> <p>Action for damages toill lie where company enters without color of title: 60 S. C. 30; 78 S. C. 419; 77 S. C. 344.</p>

<p>1. Cashier — Passenger—Punitive Damages. — Under evidence showing a conductor knew a connecting car had left, when he assured a passenger that he could make the connection, the issue of wilfulness was properly sent to the jury.</p> <p>2. Charge. — Part of charge complained of as on the facts held to be a statement of the issues as they appear in the pleadings.</p> <p>3. Carrier — Passenger—Evidence.—Conversation between passenger and one having- charge of carrier’s cars is competent in an action against the carrier for failure to take the passenger to connection as promised</p>

Before Si-iipp, J., Florence, Indictment against Harry McIntosh and John Williams. Defendants appeal. Statement of parties arrested with defendants are inadmissible: 36 S. C. 524; 49 S. C. 410; 89 S. C. 234; 12 Cyc. 423; 40 S. C. 481; 48 S. C. 136; 61 S. C. 292. Statements made in presence of defendants are competent: State v. Bdzvards, 13 S. C.; State v. Major, 70 S. C.; State v. Senn, 32 S. C.; State v. Suddiith, 74 S. C.; 79 S. C. 286.

<p>Before Ernest Gary, J., Clarendon,</p> <p>Indictment against Willie Bethune. Defendant appeals.</p>

<p>Petition in the original jurisdction of this Court for injunction by W. W. Atkinson against Southern Express Company. ~</p>

<p> This case is mled by the foregoing case of Atkinson v. Express Oo. </p>

<p>Before Gaigu, J., Kershaw, November term, 1912.</p> <p>Indictment against O. H. Watson. Defendant appeals on the following exceptions :</p> <p>1. “Because his Honor erred in refusing to allow the witness, Bowers, to testify as to the intimate sexual relations existing between the witnesses, Ella Peach and- Doma Peach, and the deceased, -T. E. Gregory, and his brothers, such testimony having been offered to show interest or bias on the part of the said Ella Peach and Loma Peach.</p> <p>2. “Because his Honor erred in allowing -the solicitor, in his argument to- the jury, over the protest of defendant’s counsel, to comment upon the fact that the witnesses as to the good reputation of the defendant were from a distance and that none had been produced from the near vicinity of his home; whereas, his Honor had refused to allow the defendant to put other witnesses on the stand to testify as to his good reputation, although he had them present and ready from the near vicinity of his home, such facts having been called to his Honor’s attention at the- time the protest was made; and notwithstanding that witness, J. E. Baker, was a close neighbor to defendant.</p> <p>3. “Because his Honor erred in charging the jury that the question of ‘self-defense might be summed up in the language of the school boy as ‘who hit the first lick;’ whereas, he should have charged the jury that the question of ‘self-defense’ depended upon who brought on the difficulty.</p> <p>4 “Because his Honor erred in charging the jury, without clear qualification, that the question of ‘self-defense’ depended upon ‘who fired the first shot,’ and in charging-said jury that ‘If Watson fired the first shot, then he can not open his mouth and plead self-defense;’ whereas, he should have charged the jury that the defendant, Watson, could plead ‘self-defense,’ even though he fired the first shot, if said shot was fired because of a reasonable belief by defendant that he was in imminent danger of death or great bodily harm at the hands of deceased.</p> <p>5. “Because his Honor erred in charging the jury, without clear qualification, as follows: ‘If the other man fired the first shot, if the peril was there imminent and the controversy was on, Watson had the right to shoot to save himself,’ the reasonable inference from said charge being, in the absence of clear qualification, or explanation, that the defendant had no right to' shoot unless the other man fired the first shot.</p> <p>6. “Because his Honor erred in charging- that ‘self-defense’ is a matter of ‘who hit the first lick,’ or, ‘who fired the first shot;’ said charge being an abstract proposition, without qualification, explanation or illustration, and, therefore, incomplete and misleading.</p> <p>7. “Because the whole charge of his Honor on the question of ‘self-defense’ was incomplete, erroneous, inadequate and misleading to the jury.”</p> <p>Relation of a witness to a party is competent to show bias: 30 Cyc. 1088. Upon denial of bias he may be contradicted: 4G S. C. 55; 34 S. C. 19; 43 S. C. 133; 29 S. E. 767; 35 S. E. 452. Counsel in argument should keep within the record: 65 S. C. 248; 35 S. C. 197; 77 S. C. 409; 86 S. C. 374. Doctrine of self-defense: 137.</p> <p>Contradiction of witness as to relations with a party is not competent as contradiction: 76 S. C. 105; 89 S. C. 151. As to counsel keeping within record in argument: 26 S. C. 118; 65 S. C. 242. As to self-defense: 76 S. C. 143.</p>

<p>1. Exceptions not alluded to in the argument of appellant are deemed withdrawn.</p> <p>2. Railroads — Section Master — Wilfulness.—From evidence tending to show a section master and his crew were coming in at the usual time and at a dangerous cut and curve, a freight train running at a dangerous and reckless rate of speed, approaching and passing a blow post without signals, that the engineer could have seen the section master and his car but did not slacken his speed, that the brakes on the lever car were defective and when the section master attempted to apply them they did not work, and that in attempting to get off the car the section master was injured, the jury might infer such an utter- disregard of duty as to warrant a finding of wilfulness.</p> <p>3. Master and Servant — Negligence.—It is the duty of the servant to obey the reasonable rules of the master, hut failure to obey such rule must be the proximate cause of injury to the servant to relieve the master from liability.</p> <p>4. Railroads. — A rule requiring- a flagman to be sent ahead does not apply to a train approaching from behind.</p> <p>5. Master and Servant — Tools—A rule of the master requiring a superior servant to inspect the tools of an inferior once a month and to throw away such as he condemned, and prohibiting the inferior from, throwing aside those not condemned, supersedes a rule requiring the inferior to inspect.</p> <p>6. Ibid. — Ibid.—Issues.—Where a rule is so plain that it needs no construction, whether it is applicable to the facts of a case is for the jury.</p> <p>7. Ibid. — Ibid.—A moving lever car is not an obstruction in the sense of those rules of the master requiring- notices to be sent out where a train for any reason is stopped on the track.</p> <p>S. Punitive Damages — A plaintiff may withdraw a claim for punitive damages where there is no evidence to support it after evidence is all in and argument has begun and not withdraw the allegations of wilfulness.</p>

<p>Action in the original jurisdiction by J. S. Acker against Jno. J. Major.</p>

Application in the original jurisdiction by Jno. M. Geer, as' police commissioner of the city of Greenville, for a writ of certiorari against Wilton H. Earle and others., composing the city executive committee for the cityof Greenville on an agreed statement of facts. The city council should elect for the unexpired term: 9 Pac. 765; 11 So. 723; 72 N. C. 158; 65 Pac. 325; 60 Pac. 569; 45 Pac. 1060; 29 S. W. 1011; 13 Pac. 841; 55 Pac. 1017.

<p>Before Rice, J., Barnwell, Spring term, 1912.</p> <p>Action by Seaboard Air Bine Railwaji Company against J. H. Hewlett and A. J. Carter. Plaintiff appeals.</p> <p>34 S. C. 156; 34 Cyc. 1578; 52 S. C. 164.</p> <p>34 S. C. 156.</p>

Proceeding' in the original jurisdiction in the nature of quo warranto by R. H. Mitchell, W. J. Jones, and A. J. Harris, as members of the board of supervisors of registration of Cherokee county, against A. W. Jones as comptroller general, W. L. Settlemeyer, R. L. Hoke and O. R. Hancock.

<p>Doweh. — Ecotcty will protect the inchoate right of dower. Rule for computing inchoate right of dower stated. The method of protecting the right depends on the facts of each ease and is done in various ways.</p>

<p>1. Res Judicata. — Trial by jury and submission of issues in trial of foreclosure of lien on a lot of land is res judicata in this action by reason of a former adjudication of those issues on Circuit and affirmance on appeal.</p> <p>3. Issues. — Such adjudication would not however conclude the trial Judge from sending out issues to enlighten his conscience.</p> <p>3. Lieu. — 'Deed in question construed to mean that if the grantors, their heirs or assigns, failed to exercise their right to build a wall on lot of grantees, while they or the Elks’ Club or any other corporation holding- for the Elks’ Club owned this lot, they should have no lien thereon, but they should have such lien if the wall was built during the ownership of the lot by any of said parties.</p> <p>4. Ibid. — Sale by grantees to another who had actual and constructive notice of the terms of the deed and of Us pendens did not have the effect of divesting the lien.</p>