Volume 95 — South Carolina Reports

Before Memminger, J., Newberry, November, 1912. Action by Julia O. F. Parry against Southeastern Fife Insurance Company. Defendant appeals. cite: Failure to pay the note avoided the policy: 72 S. C. 216; 104 U. S. 252. Offer not accepted does not operate as an estoppel: 96 U. S. 572; 96 Pac. 522; 60 A. R. 24; 29 S. E. 41; 42 At. 513; 128 N. W. 462; 76 S. E. 592; 93 S. C. 88. cites: As to forfeiture: 54 S. C. 601; 96 U. S. 242.

Before Ernest Gary, J., Clarendon, February, 1913. Action by S. M. Colclough against A. J. Briggs, R. B. Smyth, Mike Powell and E- Smyth, as executors of R. R. Briggs, on the following complaint: (1) “That the plantiff is a resident of Ridge Spring,/ Saluda county, State aforesaid.

Before Frank B. Gary, J., Spartanburg, Fall term, 1912. Action 'by Willie Dodd, by guardian, against Spartanburg Railway, Gas and Electric Company.

<p>1. Insurance — Proofs of Death. — Where an. insurer in answering a complaint on the policy admits the death o.f the insured and its liability, but alleges it does not know to whom the proceeds are due, it is not necessary to prove proofs of death were made.</p> <p>2. Ibid. — Assignment of Policy. — Where an insured in his lifetime' complies with the requirements of the policy as to assignment, and. delivers it to. the assignee with a note to the insurer to indorse thé assignment on the policy, who forwards both papers to the insurer, who receives them before the death of the insured, but does i/iot enter the assignment until after his death, but before notice there-of, the rights of the assignee are paramount to those of the first beneficiary named in the policy. An insurance policy may be transferred by parol.</p> <p>3. Parties — Executor—Administrator.—The Court will not require an executor or administrator to1 be made a party defendant where such requirement would serve no useful purpose.</p>

<p>Municipal Eeectoes — Registration—Cities and Towns — Statutes.— Any citizen of a city or town, registered to vote at a general municipal election may vote on that registration at any intervening- special election. The 20 day registration provided by sec. 221 of Code of 1912 before special elections is supplemental to the general registration. The terms of the certificate of registration as provided in sec. 225 of Code of. 1912, cannot govern the construction of sec. 221.</p>

Before Ramage, C. J., special Judge, Dillon, Fall term, 1912. Action by S. P. McDester against G. D. Barlow. Defendant appeals. cite: Parol evidence is not admissible to vary the receipt: Jones on Ev., Sec. 445; 56 A. S. R. 664. cite: A written contract may be modified or rescinded by parol: 124 U. S. 572; 63 U. S. 45; 96 U. S. 689; 101 U.'S. 522; 79 S. C.; 46 S. C. 91; Fry Spec. Per., sec. 694; 2 Story Ecp Jur. 770'.

Before Ernest Gary, J., Charleston, February, 1913. Action by J. M. Cantey against McClary-Broadway Co. in court of magistrate A. J. Richbourg. Defendant appeals from Circuit order reversing magistrate judgment. cite: There was no tenancy: 15 S. C. 85; 21 S. C. 53; 24 Cyc. 877-8, 880; 40 S. C. 575. Landlord has no lien: 21 S. C. 51; Code 1912, 4162; 26 Stat. 178.

<p>Before Wieson J., Hampton, 1912.</p> <p>Action by F. W. and Lazelle H. Browning against J. R. Hoover. Defendant appeals.</p> <p>cites: 67 S. C. 130; 16 S. C. 220.</p> <p>cites: 77 S. E. 706; 1 Rich. Eq. 404; 26 S. E. 716; 56 S. E. 546; 48 S. E. 223; 35 S. E. 507; 3 Rich. Eq. 271.</p>

<p>Claim and Delivery — Issues.—Where a defendant in a claim, and delivery suit did not in the first instance obtain the possession of the property in question wrongfully, it is necessary to allege and prove demand 'before suit, and whether demand was made is usually for the jury.</p>

<p>Pleadings. — A® answer alleging “the defendant * * * for a first defense alleges that it denies every allegation in the said complaint contained and therein stated,” is not frivolous.</p>

Before Memminger, J., Greenwood,-, 1912. Two cases, Marshall F. Sanders et al. against SEtna Fife Insurance Co., and S. H. McGhee and Mrs. Anna Belle French et al. against same. Defendants appeal. cites: The trustee by operation of law is vested with the powers the bankrupt could have exercised for his own benefit: 86 S. C. 1; 69 C. C. A. 496; 51 C. C. A. 97; 1 Boveland 818, 821; 205 U. S. 51; 182 Fed.

Before Ernest Gary, J., Richland, November, 1912. Motion to set aside service in Granite Brick Co. against Edward H. Titus. Plaintiff appeals. cite: Party may be served in civil action while attending Court: Harp. 452; 4 McC. 152; 56 S. C. 56. Service is within the exception for maliciously bringing the action being tried: 25 L. R. A. 721. cite: The statutes and lazes of this State as to service of nonresident do not apply in this case: 83 S. C. 224; 65 Am.

Before Frank B. Gary, J., Spartanburg, December, 1912. Motion in case of Robert M. Williams against M. Felton Hatcher to dismiss service of summons. Plaintiff appeals on the following exceptions: “1.

<p>Offices — Rule—Action—Jurisdiction.—This Court has no original jurisdiction to determine the title to an office on a petition and rule to show cause in less than twenty days, where the one in possession of the office demurs to the jurisdiction of the Court on the ground that the proper proceeding is by action.</p> <p>Mr. Justice Hydricic, Mr. Justice Watts concurring, thinks, also, that the petition should he dismissed because the proceeding is not of such importance wnd emergency as to warrant this Court, under its rules, to take jurisdiction in the first instance.</p> <p>The Chief Justice thinks the petition should be considered becamse brought in the name of the State by the consent of the Attorney General and the respondent agreed, if demurrer were overruled, to an order of reference of the issues of fact.</p>

Before SeasE, J., York, November Term, 1912. Action by B. J. Currence, administrator of J. Henry Joy, against Sovereign Camp, Woodmen of the World, Defendant appeals.

Before Rice, J., Lee, -, 1912. Proceeding to condemn right of way by South Carolina Western Railway against John PI. Ellen. Defendant appeals from Circuit judgment.

Before D^VorE, J., Marion, April term, 1912. Action by Chas. E. Gill against Charles E. Ruggles. Defendant appeals. cite: Words not alleged should not be proven: 8 Ency. Ev. 292; 3 Hill 175. Defendant did not plead truth as justification: 25 Cyc. 461; 4 Rich. 258. Instruction not applicable to facts in case is error: 66 S. C. 18, 449; 75 S. C. 512; 63 S. C. 559.

Before Prince, J., Anderson, Spring term, 1911. Indictment against Jim Mattison for murder. Defendant appeals. cite: Defendant was only reqiiired to prove self-defense by'preponderance of the evidence: 72 S. C. 223; 82 S. C. 280.

<p>Petition in the original jurisdiction of this Court by C. O. Burriss et al. for injunction against J. A. Brock ét al.</p>

<p>Before Spain, J., Hampton, February term, 1913.</p> <p>Action by F. M. Fykes against Seaboard Air Fine Railway in court of Magistrate M. F. Fong. Defendant appeals from Circuit order dismissing appeal.</p>

<p>Before Spain, J., Hampton,</p> <p>Action by B. T. Rushing & Co-, against Seaboard Air Line Railway, in court of Magistrate M. F. Long. Defendant appeals from Circuit order dismissing appeal from magistrate.</p>

Before Prince, J., Laurens, January term, 1913. Indictment against Rich Puckett for burglary. Defendant appeals. cite: Common lazo burglary: 2 Bish., Sec. 91; 12 S. C. 568; 2 Whar., Sec. 971; Clark’s Crim. L., Sec. 100. Piazza not a part of the dzoelling: 39 Ala. 679; 6 Words and Phrases, 5376. Indictment must set forth every fact necessary to constitute crime: 2 Whar. 1229 ;.6 Cyc. 199, 220, 231; Clark Cr.

Before DbVorb, J., Lexington, January, 1913. Proceeding for proof of will of Annie L. Roton, in solemn form. Prom Circuit decree reversing probate judgment and holding will invalid, executors appeal. cite: Where a married woman has as much right as a man to hold property her marriage should not revoke her will: 17 L. R. A. 592; 79 111. 99; 70 Wis. 251; 60 N. H. 439; 54 Am. R. 359; 130 N. W. 134; 45 Vt. 145; 81 Me. 275; 52 Am. R. 255; 67 L. R. A. 315.

Before Henry Mueeins, Special J., Lee, March, 1910. Action by J. L. Stokes et al. against William Murray.

<p>Joint Torts — Demurrer.—Master and Servant. — Where a defendant, master, is sued on a several and joint tox-t, with his servant, charging a concurrent chain of negligent acts combining to produce an injury, demur on gx'ound of misjoinder of causes of action by master wall not lie.</p> <p>Hines v. Jarrett, 26 S. C. 480, distinguished from, this case.</p>

<p>1. Ci-iarge — Self-defense.—In view of the careful instruction by the Court in this case as to the crimes of murder and manslaughter and the degree of proof required in criminal cases, it was not error for the Judge to say to the jury at the close of his charge, their first duty was to enquire if the defendant had made out his plea of self-defense by the greater weight of the evidence.</p> <p>2. Murder. — A provocation of mere words will not reduce a killing from murder to manslaughter.</p> <p>3. Charge — Castle.—Where a defendant strikes while in- his store, an instruction that the law of the castle does not apply, but that of the premises may, is not error when this part of the charge is considered in connection with the entire charge.</p>

<p>Before Gage, J., Richland, December, 1912.</p> <p>Action by Mable Reed against J. W. Reed. Defendant appeals.</p> <p>cites: 60 S. C. 448; 4 DeS. Eq. 33; 10 Rich. Eq. 176; 91 S. C. 245; 1 McC. Eq. 117.</p>

Before Sease, J., Union, December, 1912. Petition of P. B. Culp1 et al. for writ of mandamus against the city council of the city of Union. Defendants appeal. cites: Municipal registration is not necessary to hold the office of alderman: 55 S. C. 90; 28 Cyc. 412; 23 Ency. 330; 61 S. C. 67; 62 S. C. 67.

<p>Before Memmingrr, J., Laurens, Fall term, 1912.</p> <p>Action by William B. Knight against John L. Knight. Defendant appeals.</p>

<p>1. Master, and Servant — Safe Peace. — Where the master places his servant under the control of another, that other is the representative of the master, and if he puts the servant to work at an unsafe place or directs him to do the work in a dangerous way, the master is liable to the servant for injury resulting therefrom.</p> <p>2. Ibid. — Charge—Fellow Servants. — The master practically received the benefit of his request covering the principle of the nonliability of the master when the foreman and men working with him are fellow servants.</p> <p>3. Feixow Servants — Burden of Proof. — Where the master sets up the defense of injury by fellow servants in suit by servant against him for damages for injury, he must prove it by the greater weight of the evidence.</p>

Before Gage, J-, Kershaw, November term, 1912. Action by Geo. Held: it is respectfully submitted, that the said testimony was incompetent and inadmissible.

<p>Before Peincb, Charleston, October, 1912.</p> <p>Action by E. Russell Middleton, as Bishop of the Reformed Methodist Union Episcopal Church, and the Reformed Methodist Union Church, against J. A. Ellison, T. C. Colclough, D. D. Ross et al.</p> <p>The Circuit decree is:</p> <p>“This is a suit for injunction brought by E. Russell Middleton, as Bishop of the Reformed Methodist Union Episcopal Church, and by the Reformed Methodist Union Church, a South Carolina corporation commonly known as The Reformed Methodist Union Episcopal Church. The action is brought against certain individuals, named as defendants herein, who, it is alleged, are claiming and assuming to be the regular church, are using the corporate name of the church,- and are conspiring to- injure and destroy the church and church government of the plaintiffs ; it is further alleged that the defendants are creating disturbances and have caused conflicts to take place in some of the churches, and congregations of the plaintiff corporation and are interfering with and undertaking to take possession of certain of the church property; it is also alleged that the defendants have undertaken to hold meetings in the name of the plaintiff corporation and have called a meeting for November 4, 1912, to consider making certain changes in its charter.</p> <p>“The matter comes before me now on an application for a restraining order, pendente lite, under a rule to show cause issued by me and duly served on the defendants, and under the return of the defendants and sundry affidavits submitted by both sides.</p> <p>“Many points and questions of fact have been raised at the hearing before me which I do' not consider it necessary or proper for me to pass upon at the present time. The action being for injunction, the matter to be decided here is whether, under the showing made by the affidavits submitted and by the pleadings, the plaintiffs have shown that there are substantial questions to be decided and that the status of affairs existing at the commencement of the action should be preserved.</p> <p>“Without going into a discussion of the facts or of the questions involved, I am satisfied that the plaintiffs under the showing made are entitled to a temporary restraining order.</p> <p>“The question which requires more consideration is as to what property the restraining order should apply to and on this point there is great conflict between the statements made by the contending parties.</p> <p>“The controversy concerns itself with a seism in the Reformed Methodist Union Episcopal Church, which is a religious organization made up of numerous congregations and with a large membership in this State and in Georgia. Each side claims to be in possession of certain of the churches and to have certain congregations with it, and affidavits are submitted by each party to sustain its respective contention.</p> <p>“While there seems to be a dispute that plaintiffs represent the original organization, yet prior to the spring of this year the defendants were acting as a part of the plaintiff organization under Bishop Middleton. The organization has been known as the Reformed Methodist Union Episcopal Church for many years during which defendants were members of and identified with it. Under these circumstances, the defendants will not be heard now to question its right to' use this name nor will the Court undertake to inquire into its ecclesiastical acts. In such cases, the Courts of law are accustomed to inquire which party or division maintains the churth organization as it existed and to recognize this party. While not undertaking to decide finally this question at the present time, it has become necessary to- consider the matter from this point of view, in view of the conflicting statements of the affidavits submitted.</p> <p>“It appears that several of the defendants who now claim to be in possession under the defendant, Ellison, were appointed to these charges by the plaintiff Bishop and took possession under him. Since the seism in the church, many of the congregations under these defendants have been rent in twain and dissension and division exists amongst them. Having been appointed and having entered into possession under the Bishop1, those of the defendants whose congregations are divided cannot claim to be in peaceable possession as against the Bishop and against that portion of their congregation who still support him. On the contrary, these pastors having been placed there by the Bishop, he and his supporters are to be regarded as still in possession under the circumstances disclosed at the hearing, unless full and legal possession is shown to have been obtained by the opposing faction. In all cases, therefore, except those in which complete or entirely peaceable possession is shown, the plaintiffs are entitled to be free from interference during the pendency of this action.</p> <p>“In the churches of St. James in the St. James Circuit in Clarendon county, and of St. Peter’s and Zion in the Lake City Circuit, the plaintiffs concede the fact that all or practically all of the members of the congregations have sided with the defendants and that the latter are practically in complete possession. In the case of St. Mark’s Church in St. Andrew’s Parish, Charleston county, it would also appear from the statements made that although plaintiffs claim that certain of the members are opposed to defendants, the large majority are with Ellison and his associates and no disturbances have occurred with reference to their possession.</p> <p>“In these cases, I shall not interfere with the defendants and they may continue in their possession and control.</p> <p>“With reference to the churches and congregations in the State of Georgia, I shall also not undertake to pass any order.</p> <p>“With these exceptions, however, I think plaintiffs are entitled to a temporary restraining order against the defendants. It is therefore ordered that during the pendency of this action and until further order of the Court the defendants and all acting under them be and they are hereby restrained and enjoined from interfering with plaintiffs in the exercise of their rights, privileges and in performing their duties as a corporation as Bishop thereof respectively, in connection with the government of the said church and the direction and control of the congregation and places of worship thereof. * * *”</p> <p>Defendants appeal.</p> <p>cite: Corporation chartered by statute can only change its name by statute: 10 Cyc.,155, 156, SOI, S10; 4 Ency. S04; 10 Rich. Eq. 604. Law courts must accept as final decisions of ecclesiastical courts: 13 Wall. 679; 1 Speer Eq. 87; 67 S. C. 341; 3 B. Mon. S53; 45 Mo. 183; 3 Pa. St. S91; S3 Ill. 456. The Bishop cannot maintain this suit without authority from the corporation: 67 S. C. 346; 20 Ency. 821; 11 So. 682; 18 N. Y. 379; 3 Grat. 215; 42 Ky. 253; 67 Ky. 215; 27 N. J. L. 539; 2 Thomp. on Corp., secs. 1068, 1071, 1161. Court in such proceeding should not take property from possession of one and put it in possession of another: 27 S. C. 415; 19 S. C. 286.</p> <p>cite: Acts of ecclesiastical bodies are final in ecclesiastical matters: 13 Wall. 679; 91 N. W. 886; 67 S. C. 338; 14 G. R. A. 518. After acquiescing in corporate action for a number of years, appellants cannot object now: Code 1902, 2839, 2866; 76 S. C. 77; 67 S. C. 338; 6 Thomp. on Corp. 7374; 18 Am. D. 99; 4 Gill 498; Angelí and Ames on Corp. 491, 495; 12 Vt. 688; 10 Conn. 200; 27 At. 998. The local congregation form a part of the religious organization: 13 Wall. 679. The Courts will recognize that part of the church maintaining the church organization: 13 Wall. 679; 24 G. R. A. 615; 14 G. R. A. 518; 34 S. W. 875; 8 Am. R. 275. Those in full control of property are properly so left: 92 S. C. 348; 69 S. C. 156; 67 S. C. 338; 72 N. W. 600; 35 At. 869; 9 Wheat. 841; 13 Wis. 348; 5 Am. R. 415; 63 S. W. 48; 199 U. S. 279.</p>

<p>1. Insurance — Forfeiture.—A policy of life insurance containing a provision that the policy becomes void on failure to pay premiums when due is not forfeited within the extension by failure to pay a</p> <p>' premium, notice of which is given in a letter stating that the company grants thirty days’ extension with interest.</p> <p>2. Ibid. — Ibid.—The statute of N. C. extending the time of forfeiture in certain cases expressly exempts policies of “a term insurance for one year.”</p>

Before Wilson, J., March, 1912. Action by G. F. Bethea against Western Union Telegraph Company. Defendant appeals. cite: Message could not be transmitted after office hours at office of destination: 73 S. C. 520; 71 S. C. 304, 38C. Delay here is not sufficient to show wilfulness: 79 S. C. 160; 73 S. C. 379; 77 S. C. 399; 65 S. C. 93. The delict alleged must be the proximate cause of the injury: 72 S. C. 516; Jones, sec. 325; 70 S. C. 418.

Before Memminger, J., Hampton, December, 1912. Action by James C. Fair ey against E. A. Zeig'ler. Defendant appeals. The affidavit and notices of motion referred to are: “Personally appeared before me G. D. Salley, C. C. P. of Orangeburg county and the said State, James.

Before Harcott P. Green, Special J., Chesterfield, November term, 1912. Action by B. E. and Albany McNair against Fanny and Charles Johnson. Plaintiffs appeal. cite: Upholding judicial sales: 21 S. C. 75; 83 S. C. 165; 40 S. C. 78; 23 S. C. 516. Presumption from lapse of twenty years: 1 Hill Ch. 378; 79 S. C. 303.

Before Joseph A. McCullough, Special J., Marlboro, November, 1912. Action by Georgia Dimery against Bennettsville and Che-raw Railroad Company. Defendant appeals. cite: An opinion from the Judge is as harmful as an instruction: 87 S. C. 244; 57 S. C. 243; 70 S. C. 183; 52 S. C. 540.

<p>Before Shipp, J., Anderson, February, 1913.</p> <p>Action by Virginia Latimer against County of Anderson. Defendant appeals.</p> <p>cite: The plaintiff should not recover for the negligence of another than the county: 27 N. E. 522; 91 N. E. 306; 72 N. E. 77; 17 N. E. 538; 52 At. R. 844; 38 Vt. 439; 79 N. E. 876. Recovery can only be had for injury caused by negligent repair or defect in the highway: 20 S. C. 496; 27 S. C. 419; 34 S. C. 144; 45 S. C. 392; 38 S. C. 282; 17 N. E. 541; 80 N. E. 5. County is only liable for authorized acts: 39 S. E. 316; 28 Cyc. 586; 11 Cyc. 498. Not liable for negligent acts of others: 20 S. C. 496; 27 S. C. 449; 40 S. C. 591; 38 S. C. 282; 89 S. C. 511. As to charge on the facts: 53 S. C. 452; 31 S. C. 234; 67 S. C. 456; 51 S. C. 460; 47 S. C. 523; 91 S. C. 512; 90 S. C. 461; 93 S. C. 267. Passenger’s attitude towoA-d driver should be considered: 81 S. C. 113; 29 L. R. A. (N. S.) 179; 52 At. 543; 116 U. S. 371; 159 Fed. 18; 17 N. E. 202; 79 N. E. 878.</p> <p>cite: Stretching the rope across the highway was a defect or negligence in its repair: 43 S. C. 401; 89 S. C. 520; 66 S. C. 448; 127 N. Y. 40; 36 Conn. 320; 18 Hun. 146; 106 Wis. 403; 85 la. 346. Charge not on the facts: 92 S. C. 188; 91 S. C. 178; 93 S. C. 375; 90 S. C. 422, 462; 88 S. C. 520, 386. The negligence of the driver is not imputable to the passenger: 8 L. R. A. (N. S.) 597; 51 Fed. R. 174; 35 Minn. 522; 66 S. C. 47.</p>

Before Sease, J., York, Fall term, 1912. Action by Janies M. Gamble against Metropolitan Life Insurance Company. Defendant appeals. cite: An instruction inapplicable to any facts in the case and tending to mislead the jury is error: 66 S. C. 18; 42 S. E. 42; 54 S. E. 110; 53 S. E. 145; 55 S. E. 1; 44 S. C. 548; 64 S. C. 112; 78 S. C. 33. cite: When knowledge of the agent may be imputed to principal: 88 S. C. 31; 52 S C. 224; 79 S. C. 526; 81 S. C. 152.

Before Rice, J., Barnwell, December, 1912. Action by H. M. Harveley against Southern Railway Company in court of W. R. Brabham. Plaintiff appeals from judgment on Circuit reversing judgment of magistrate court. cite: What is a rule? 4 Words & Phrases 398; 7 Id'. 6271; 25 Fla. 40. Hepburn act requires rates to be published: 208 U. S. 452. cite: Carriers have the right to adopt reasonable rules: 30 Am.

<p>Larceny — Jurisdiction.—The city recorder of the city of Sumter has no jurisdiction to try and sentence one for petit larceny.</p>

<p>1. Railroads — Crossings—Negligence.—In this case the charge was as explicit as the Court should have made it on the doctrine that failure to observe due care at a dangerous crossing at a time when the traveler had knowledge or ought to have known that a train was approaching, is gross negligence.</p> <p>2. Issues. — A party may withdraw an abandonment of issues if it is done at a time that the other party could not be prejudiced thereby.</p> <p>3. Railroads — Crossings—'Negligence—Issues.—Whether a failure to give a crossing signal at a dangerous crossing is wilful or inadvertent is for the jury.</p>

<p>Before Frank; B. Gary, J., Charleston, May, 1912.</p> <p>Action by Caroline M. Beylot against Atlantic Coast Line R. R. Co. The Circuit decree appealed from is:</p> <p>“Briefly stated, this is an action in which the plaintiff seeks to recover an amount alleged to be due her by reason of the fact that her son, Marion J. Beylot, was killed while he was a member of the relief fund of the relief department of the Atlantic Coast Line Railroad Company, she being the beneficiary.</p> <p>“The answer of the defendant states substantially that the said Marion J. Beylot was a member of said relief fund; was in the employ of the defendant and was killed while so employed. The answer sets forth the terms of the contract entered into when the said Marion J. Beylot became a member of the relief fund, one of the provisions being that if an action on account of injuries to or death of the said Marion J. Beylot should be instituted against the ■defendant to recover damages by the said Beylot or his representatives, benefits from the relief fund would be waived and released to the defendant. The answer further states that the plaintiff herein has, as administratrix of her son, instituted a suit against the defendant for her benefit; that she recovered judgment in said suit for ten thousand ($10,000.00) dollars, on account of the negligent killing of the said Marion J. Beylot by the defendant; and, that the said judgment with interest and cost was paid in full by this defendant on the 7th day of January, 1911, and a release in full executed therefor. The answer then invokes the terms of the contract as a defense to this action. The plaintiff demurs to the answer as not constituting a defense.</p> <p>“Whether or not the answer constitutes a defense to the action is the sole question presented for my determination. I am referred to the case of Sturgiss v. Atlantic Coast Line Railroad, 80 S. C.,‘ and to the case of Miller v. Atlantic Coast Line Railroad Company, 90 S. C., as conclusively showing that the answer does not constitute a defense to this action. A careful study of the points decided by the two cases leads me inevitably to the conclusion that the demurrer should not be sustained. It seems to me that it is no longer an open question. In the Sturgiss case the Court was evenly divided as to whether or not the act of the legislature limiting the effects of contracts such as the one above referred to is constitutional, and, of course, that question was left unsettled by that case. Subsequently the Miller case upheld the constitutionality of the act, and decided that it was a valid exercise of the police power of the State. The Miller case went no further than to settle what was left unsettled by the Sturgiss case. But in the Sturgiss case the Court was unanimously of the opinion, ‘that the statute does not provide that a receipt or release given in satisfaction of a claim arising out of negligence shall be null and void and that even after full compensation for negligent injuries, the employee shall still have the right to recover his beneficial interest in the hospital fund, although he had) previously relinquished it,’ or as another of the Justices expresses it, ‘the statute goes on to provide that the acceptance of benefits shall not estop from recovering damages for negligent injuries or death, and declared void any contract to the contrary, and any receipt or release given in consideration of such benefits, but it nozvhere declared that a member after full compensation for the negligent injury is still entitled to recover of the same defendant the benefits which he agreed to waive by accepting compensation in such other mode.’ The Miller case in no wise conflicts with this unanimous finding in the Sturgiss case.</p> <p>“If, then, the statute is silent as to the effect of having brought .suit against the same defendant for damages, parties would be governed by the terms of the original contract. Without some legislative limitation of this part of the contract, which as we have shown, does not exist, this part of the contract is binding upon the parties to it. Johnson v. Railroad Co., 55 S. C. 152.</p> <p>“It is therefore ordered: That the demurrer be, and the same is hereby, overruled.”</p> <p>Plaintiff appeals.</p> <p>cite: The statute controls: 219 U. S. 549; 90 S. C. 249.</p>

<p>Before Ernest Gary, J., Sumter, April, 1913.</p> <p>Action by Brown & Parler against J. K. Kolb in magistrate court. Prom Circuit order fixing appeal costs, defendant appeals.</p> <p>cites: 79 S. C. 388; 41 S. C. 206; 44 S. C. 376.</p> <p>cite: 44 S. C. 376; 79 S. C. 388; 43 S.'C. 262; 38. S. C. 158; 93 S. C. 316.</p>

<p>1. Service op Smmosrs — JunGiiEXT—Waiver.—There being evidence here that the party served as agent of the corporation intended' to be served was in fact not such agent, and no evidence to the contrary, the service and judgment by default were properly set aside and vacated. Request by defendant of extension of time to answer is not a waiver of no service.</p> <p>2. Excusable Neglect. — Where a motion is made to set aside service of summons and to vacate judgment by default on ground- of excusable neglect, the Court should find that judgment was obtained through excusable neglect of defendant, where it sets aside the service.</p>

<p>Before Spain, J., Sumter, November, 1912.</p> <p>Action by Fannie E. Hurst against J. D. Craig Furniture Company, R. F. Haynsworth and W. C. Wise. Defendants appeal on the following exceptions:</p> <p>1. “Because his Honor erred, it is respectfully submitted, in excluding the testimony of R. F. Haynsworth, one of the defendants, as to a conversation had between him and J. D. Craig from whom R. F. Haynsworth purchased a one-half interest in said business, as to the fixtures involved in this suit, on the ground that the said testimony was incompetent under section 400 of the Code, whereas, his Honor should have allowed the defendant and witness, R. F. Haynsworth, to testify as to the conversation with J. D. Craig as the same was competent under section 400 of the Code, and relevant to the issues in this case, and said testimony was material, and probably would have changed the result of the said case.</p> <p>2. “Because his Honor erred, it is respectfully submitted, in refusing fi> allow the defendant and witness, R. F. Haynsworth, to answer the question, ruling that the same was incompetent under section 400 of the Code, as follows: ‘Q. At the time you purchased it, did he represent these fixtures as being a part of the business ?’ The error being that J. D. Craig, owning the business out of which this suit arose, sold a one-half interest to this witness and his representations at such time were material to this cause, and the plaintiff having gone into said conversation, and having been examined in regard to said transaction or communication, and evidence as to the same having been given on the trial in behalf of the plaintiff, that then the testimony was competent under section 400 of the Code, and the witness should have been allowed to answer the same, and if the answer had been allowed the same would probably have changed the result of this trial.</p> <p>3. “That his Honor erred, * it is respectfully submitted, in refusing to allow R. F. Haynsworth, one of the defendants and witness, to testify as to any conversation with J. D. Craig concerning his purchase of one-half interest in the business from the said J. D. Craig out of which this suit arose, and holding that all such conversation was incompetent under section 400 of the Code, whereas, his Honor should have allowed the witness, R. F. Haynsworth, to testify as to the said conservation, transaction and agreement with the said J. D. Craig, the plaintiff having gone into the same, testified as to said conversation and transaction, and testimony having been offered on behalf of the plaintiff as to such conversation or transaction, and therefore the witness should have been allowed to testify as to' the same.</p> <p>4. “Because his Honor erred, it is respectfully submitted, in charging the jury as follows: ‘Now, as to that awning, that is a question of fact for you to determine whether the word “awning” includes the frame and the covering, or just the covering.’ The error being that his Honor should have charged the jury that the word ‘awning’ as used in stock taking included the frame, and the stock taking being in writing, it was the duty of the Court to construe the same.</p> <p>5. “Because his .Honor erred, it is respectfully submitted, in not charging the jury that all of the chattel property referred to in the complaint were trade fixtures, and as such were removable by the tenant within the term of his lease.</p> <p>6. “Because his Honor erred, it is respectfully submitted, in leaving to the jury the determination of the class of property referred to1 in the complaint, but should have held that the same were trade fixtures, which, under the evidence, were removable by the tenant at any time within the term of his lease, and therefore the tenant was not liable for removing the same.</p> <p>7. “Because his Honor erred, it is respectfully submitted, in charging the jury as follows: 'Now, you must take into consideration, what was the intention — what was the intention of the parties? Did they intend when they — these fixtures were fixed to the realty, to use them for the purpose of carrying on their trade, or was it for the purpose of becoming a convenience to the land? * * * Now, that is a question of fact for you to determine, whether these are fixtures under the law as I charge you, or whether they are not fixtures.’ The error being that his Honor should have charged the jury that all of this property were trade fixtures, removal by the tenant during the term of his lease.</p> <p>8. “Because his Honor erred, it is respectfully submitted, in not directing a verdict for the defendants, on the ground that all of the chattels were from their nature trade fixtures, removable by the tenant who put them in within the term of the lease.</p> <p>9. “Because his Honor erred, it is respectfully submitted, in not directing a verdict except as to the actual value of the awning frames, there being no testimony that any of the property was other than trade fixtures put into the building by the tenant for the purpose of its business, and therefore removable by it during the term, and therefore defendants could not be held liable for the value of the fixtures, same being the property of the defendant, J. D. Craig Furniture Company, and they having the right under the law of this State to remove the same.</p> <p>10. “Because his Honor erred, it is respectfully submitted, in not directing a verdict as to punitive damages, there being no evidence sufficient to sustain an action for punitive damages, the defendants merely having removed certain trade fixtures belonging to it without in any way damaging or injuring the property of the plaintiff, and therefore there was no testimony on which to base punitive damages in this action.</p> <p>11. “Because his Honor erred, it is respectfully submitted, in not granting a new trial on the ground that the chattels out of which this action arose were from their nature trade fixtures and removable by the tenant who put them in during the term.</p> <p>12. “Because his Honor erred, it is respectfully submitted, in not setting aside the verdict and granting a new trial on the ground that there was no testimony to sustain punitive. damages, and no testimony to sustain any actual damages, the property being removed being the property of the defendant, J. D. Craig Furniture Company.</p> <p>13. “Because his Honor erred, it is respectfully submitted, in not directing a verdict as to the allegation as to painting out the sign of the defendant, J. D. Craig Furniture Company, from the outside of the store building of the plaintiff, as the same was a trade fixture and removable by the tenant during the term, and the tenant had a right to obliterate its trade name so painted on the store building.</p> <p>14. “Because his Honor erred, it is respectfully submitted, in not granting a new trial on the ground that there was no testimony showing that the defendants were in any way liable for the painting out of the sign on the outside of the store building, as the sign was a trade name of the J. D. Craig Furniture Company, and the sign, after being placed upon the said building, became a trade fixture and removable by the tenant during its term, and the mere attempt to remove the same was no ground upon which to base a cause of action.</p> <p>15. “Because his Honor erred, it is respectfully submitted, in allowing the jury to consider the question of the stable door or gate, the error being that the evidence having shown that the gate or door of the stable had fallen from its support by reason of the natural wear and tear of its use, that then these defendants were not liable for the same having fallen off the hinges, and therefore there was nothing actionable in the gate having fallen off its hinges from ordinary use, wear and tear.”</p> <p>cite: Tenant has right to remove trade fixtures: 7 D. Ed. 138; 35 Id. 1055; 52 S. C. 619; 44 S. C. L. 135; 15 S. C. 67; 51 S. C. 28; 31 S. C. 274; 15 L. R. A. 462.</p> <p>cites: As to fixtures: 1 Bail. 540; 3 Hill 613; 51 S. C. 29.</p>

<p>1. Electric Companies — Nuisance—Negligence.—Evidence that an electric company built a house on the premises of a cotton mill for transforming electric power for the mill to which the cotton mill ■had the key but to wh.ich the electric company had free access and in which its agents were at work the day before an infant climbed up to a window left open on that day, reached its hand through the open window and touched the wires on the inside heavily charged with electricity, is sufficient to support a finding of negligence on the part of the electric company.</p> <p>2. Negligence — Ibid.—One establishing a dangerous agency at a place where others are liable to be and have the right to be, must use due care in guarding it.</p> <p>3. Ibid. — Ibid.—Proximate Cause. — Leaving a wire heavily charged with a current of electricity where a child may touch it may be the proximate cause of his injury caused by his touching it.</p> <p>4. Electric Companies — Nuisance—Issues.—Whether an open window to a transformer house where live wires are located is an attractive nuisance is for the jury.</p> <p>5. Nuisance — Negligence.—Maintaining on one’s property inticements to the ignorant and unwary is tantamount to an invitation to visit, inspect and enjoy and the duty to protect from1 the dangers of the place follows as justly as if the invitation had been express.</p>

<p>1. Nonsuit — Master and Servant. — In deciding if motion for nonsuit was erroneously refused, this Court will consider all the evidence. Here there was evidence to show the place furnished by the master was not safe.</p> <p>2. Charge — Wilfulness.—Refusal to direct verdict on issue of wilfulness is cured by instruction that nobody claims there is any wilfulness in the case and that verdict could only be rendered for actual damages.</p> <p>3. Master AND Servant — Burden op Proof. — Where it is shown a servant was injured- because of a defective or unsafe place, the burden is then cast on the master to show he used due diligence in keeping the place reasonably safe and suitable.</p> <p>4. Charge — Requests.—Where a Judge gives in his charge the substance of every sound proposition of law requested, he cannot be charged with error in refusing- a request.</p>

Before Copes, J., Clarendon, December, 1911. Action by D. W. Alderman & Sons Co, against Sara A. McKnight. Plaintiff appeals. cites: Adverse possession must be proved against presumed possession of one holding legal title: 71 S. C. 330; 48 S. C. 28; 37 S. C. 576; 3 S. C. 34; 82 S. C. 221. cite: Possession for twenty years presumes a grant: 48 S. C. 490; Hill Ch. 376; 2 Rich. 19; 72 S. C. 312; 86 S. C. 294. Not necessary to notify of possession: 86 S. C. 461.

<p>Before Memminger, J., Charleston, December, 1912.</p> <p>Action by V. D. S. Wilkins against Hilton-Dodge Dumber Comapny. Defendant appeals.</p> <p>Messrs. Benj. H. Rutledge and B. A. Hagood cite: Constructive notice: 14 S. C. 322; 39 S. C. 84. Recording option is not notice: 1 Strob. Eq. 393; 39 S. C. 81; 21 Ency. 925; 113 N. W. 287; 100 N. W. 9; 68 At. 839, 836; 53 S. E. 797; 6 D. R. A. (N. S.) 403; 19 S. E. 536; 60 C. C. A. 103; 24 Ency. 81; Harp. Eq. 191; 17 Johnson 351; 45 S. C. 343; 53 S. C. 341; 24 Ency. 79. A purchaser is not bound by notice of am equity: 2 Hill Ch. 421; 12 S. C. 108; 16 S. C. 384; 48 S. C. '516; 77 S. C. 32; 6 L. Ann. R. (N. S.) 408; 27 S. C. 408. Injunctions do not follow automatically the allegations: 87 S. C. 566; 69 S. C. 551; 89 S. C. 143; 86 S. C. 160; 176 U. S. 44; 2 Spelling on Ex. Relief 1041.</p> <p>An option may be enforced: 33 Fed. 530; 56 Fed. 1; 26 S. W. 334. Recording option is notice: 44 Mass. 390. Motion to dissolve was properly refused: 69 S. C. 156; 86 S. C. 160; 87 S. C. 568; 69 S. C. 156; 86 S. C. 160.</p>

<p>Railroads — Negligence—Issues.—Evidence to the effect that a pedestrian was walking along- a path beside a railroad track where people were accustomed to walk without objection from the company in a populous manufacturing- community while the plants were in operation, the noise of which drowned the noise of the engine, that he stepped on the track to avoid some railroad iron left in the path by the company, that he was struck by an engine running- backwards as he stepped on the track, that no signals were given as the engine approached, carries the -issues of negligence of the railroad company and of contributory negligence of the pedestrian to the jury.</p>

Before Shipp, J., Pickens, February, 1913. Action by Duvicy D. McDaniel against Greenville Carolina Power Co. Plaintiff appeals. cite: Authority by legislature to build a dam across a nonnavigable stream does not relieve from liability for damages: 60 S. C. 265; 58 S. C. 560. Legislature could only grant authority to build a dam across a navigable stream for navigation purposes: 2 Am. R. 64; 40 Cyc. 565; 10 Wall. 497; 82 Am.

<p>Wills — LiaiiTATion of Estates — Fee Defeasible. — In a will providing in one clause that “all the rest and residue of my real estate * * * I give and bequeath unto my beloved wife * * * that is to say during her natural life * * * and after her death * * * to be equally divided between my * * * children,” naming them, and in the following clause: “In case any of our children should die and not leave any issue living then his or her share or part shall be equally divided between our children then living or their issue * * * the issue, if any, are entitled and receive the parent part,’2 the word “then” in the last clause refers to the dying of the children of the testator at any time. Cases considered.</p> <p>Blum v. Evans, 10 S. C. 56, held to home been overruled by Marshall v. Marshall, 42 S. C. 436.</p> <p>Me. Justice Frasee dissents.</p>

Before Spain, J., Sumter, November, 1912. Action by Maud O. Taylor et dl. against Isaac Strauss and Taylor Goodman.

Before F. B. Gary, J., Eau-rens, July term, 1912. Action by Nannie Tucker, administratrix of Roy Tucker, ’ against Clinton Cotton Mills. Defendant appeals. cite: There was a variance between the allegations of manner of death and proof: 47 S. C. 30; 45 S. C. 278. Law of master and servant applies: 81 S. C. 16; 83 S. C. 19; 26 Cyc. 1080, 1202, 1088, 1244; 63 S'. C. 170; 4 Ency. 46; 72 S. C. 242, 348; 80 S. C. 232; 58 S. C. 413; 29 Cyc. 542, 555.

<p>1. Evidence — 'Declarations—Res Gestae.' — ¡Statements made by one injured by a train of freight cars as soon after the injury as those near could get to him as to how he was injured are admissible as part of the res gestae. That declarant was dazed or shocked does not render the declarations incompetent, but only affect their weight.</p> <p>3: Ibid. — Rule.—'Error in admitting parol evidence as to the contents of a printed rule is cured by introduction of the rule.</p> <p>3. Ibid. — Expert Evidence. — One conversant with the length of freight cars may testify as to their length and the distance they extend over the ends of the crossties, and such evidence is competent on the issue of injury caused by a freight car extending over the crossties.</p> <p>4. Railroads — Industrial Sidetracks — Children—Issues.—Whether a railroad company was negligent in running a train of freight cars over an industrial sidetrack rapidly, where children were accustomed to be and' where the company had left a pile of crossties piled near the track irregularly in violation of its rulés on or near which a child was struck and injured, and whether the train came in without proper lookout, were issues under the evidence here for the jury.</p> <p>5. Ibid. — Nuisance—'Children.—While this Court is not prepared to hold that a pile of crossties is per ae an attractive nuisance for children, yet the evidence as to the place in question and of the use made of it by children, warranted submitting this issue to the jury.</p> <p>6. Charge. — In giving- a request it is the duty of the Judge to make clear in his own language or that of this Court in former decisions, what the principle of law embodied in the request is.</p>

<p>Before Sease, J:, Spartanburg.</p> <p>Application by W. J. Massee for discharge under writ of habeas corpus from arrest under requisition from the Governor o-f Tennessee. State appeals.</p>

<p>Before Memminger, J., Pickens, March term, 1912.</p> <p>Action by Daniel M. Merck et al. against Dawrence C. Merck et al. Plaintiffs appeal.</p> <p>cite: No presumption arises from execution of deed of its delivery: 1 Devlin on Deeds 516; 63 Cal. 493; 131 N. C. 216; 10 Rich. Eq. 219; 52 S. C. 472; 19 S. C. 216; 3 Strob. 107; 93 S. C., 71; 57 S. C. 174; 11 Rich. 303. Declarations of grantor as to exeaition and delivery: 2 Wig. Ev., sec. 1471; 9 L. R. A. (N. S.) 1136; 3 Brev. 40; 1 Dev. 395, 474; 2 Jones Real P., sec. 1217; 90 S. W. 617; 27 N. C. 105; 76 N. E. 846; 82 S. C. 264; 75 Ga. 452; 2 Hill Ch. 411; 23 S. C. 91; 84 N. E. 639. Under the pleadings and facts of this case respondent is not entitled to rely on the defense of estoppel: 81 S. C. 329; 27-S. C. 235; 1 Bay 241; 31 S. C. 153; 82 S. C. 24; 89 S. C. 394; 84 S. C. 429; 122 U. S. 241; 89 S. C. 395; 52 S. C. 408; 7 D. R. A. (N. S.) 712; 34 Am. Dec. 517; 2 Eq. Jur. Pom., sec. 687; 16 Cyc. 772; 9 L. R. A. (N. S.) 1136; 83 U. S. 326; 7 L. R. A. (N. S.) 1019; 42 N. E. 988; 7 C. B. (N. S.) 447; 97 U. S. 369; 40 L. R. A. 498; 37 D. R. A. 780; 54 N. E. 565; Big. Estop. 483, 485; 81 S. W. 343; 100 Am. St. R. 557; 3 L. R. A. 576; 8 Rich. 230; 30-Wis. 55; 1 Devlin 411.</p> <p>cites: Plaintiffs are estopped by the acts of their ancestor from insisting the deed was not delivered: 67 S. C. 453; 86 S. C. 545; 93 S. C. 287. Bstoppel by negligence is not same as purchaser for value without notice: 81 S. C. 329; 3Í S. C. 153; 84 S. C. 426; 122 U. S. 241; 100 U. S. 578; 16 Cyc. 744; 55 D. R. A. 745; 9 S. C. 20; 10 S. C. 449; 42 S. C. 170; 13 Am. Dec. 406. Proof of execution: 2 Wig. Ev., sec. 1302; 96 Ga. 1; 19 Ves. Jr. 494; 1 Mill. Con. R. 336; Rice Eq. 244; 8 Rich. 135; 50 S. C. 103; 11 S. C. 429; 74 S. C. 144; 14 Ency. Ev. 782; 23 How. 353; 16 S. C. 142. When grantor signs by mark, proof of signature of witness is sufficient: 1 Mill. Con. 336; 11 S. C. 429; 74 S. C. 144. Recording of deed is evidence of delivery: 81 S. C. 453; 52 S. C. 472.</p>

<p>Amending Pleadings — Discretion—Answer.—A Circuit Judge has the power to permit an answer of a railroad company in a suit for damages for taking the soil of another, in which it claims the right to the soil, to be amended to set up that the soil was removed by an independent contractor as there is no abuse of discretion shown here.</p> <p> Divided Gourt. </p> <p>Before Wirson, J., Sumter, October, 1912.</p> <p>Action by Julia V. Beck against Northwestern Railroad Company. Plaintiff appeals.</p> <p>cite: As to amendment: 74 S. C. 236; 80 S. C. 213; 81 S. C. 574; 91 S. C. 51. As to abuse of discretion: 47 S. C. 498; 92 S. C. 33.</p> <p>cite: As to amendment: 81 S. C. 578; 30 S. C. 575; 74 S. C. 236; 30 S. C. 564; 53 S. C. 577, 259. As to abuse of discretion: 92 S. C. 297; 31 S. C. 378.</p>

<p>Before Si-iipp, J., Marion, September, 1912.</p> <p>Action by Rebecca A. Gibson, guardian, against Florence A. Bethea et al. Defendant, Bank of Marion, appeals from the following Circuit order:</p> <p>“The defendant, Florence A. Bethea, moved before me at my chambers at Florence, South Carolina, on the 27th day of June, A. D. 1912, to vacate and set aside the judgment in the above stated case and to require her codefendant, the Bank of Marion, to serve its answer upon her and to permit her, the said Florence A. Bethea, to answer the same. This motion was resisted by the Bank of Marion and the affidavits submitted in support of and against the motion are irreconcilable. It appears, however, that judgment was rendered in favor of the Bank of Marion against its codefendant, Florence A. Bethea, for the foreclosure of a mort-. gage given to secure a promissory note which was not then due, and that the judgment included attorney’s fees for the foreclosure of said mortgage. It appears also1 that the answer of the Bank of Marion was not served upon its codefendant, Florence A. Bethea, and .it is probable that if it had been so served, she would at least have resisted the demand for attorneji-’s fees, to which the bank was not then entitled. Without deciding the issues raised by said affidavits, I am clearly of the opinion that the defendant, Florence A. Bethea, is entitled to her day in Court and to be permitted to answer the cross-answer of her codefendant, the Bank of Marion, as she may be advised. The judgment should remain undisturbed except in so far as it relates to the note and mortgage from the defendant, Florence A. Bethea, and her husband, P. Y. Bethea, to her codefendant, the Bank of Marion. * * *”</p> <p>cites: Should defendant mortgagor have been served with appellant’s answer? 83 S. C. 491; 71 S. C. 439; 55 S. C. 510; 47 S. C. 4G0; 68 D. R. A. 333; Wiltsie on Foreclosure 451; 34 S. C. 48. Attorney’s fees: 33 S. C. 383; 77 S. C. 333. Judgment may be opened, but not set aside unless void: 90 S. C. 553.</p> <p>mortgagor, contra, cite: Was judgment within the scope of the complaints? 47 S. C. 4G0; 83 S. C. 491. Is section 225 of Code of Proc. applicable? 83 S. C. 505; 81 S. C. 388. Order affects surplus only and is in furtherance of justice: 56 S. C. 31-; 64 S. C. 343; 83 S. C. 505.</p>

Before PrincD, J., Colleton, November term, 1913. Action by C. M. Smyly et al. against Colleton Cypress Company. Defendant appeals. cite: Acts proved do not show possession: Rice 375; 1 N. & McC. 318; 3 N. & McC. 579; 35 S. C. 353. Duty to direct a verdict: 91 S. C. 463. cite: Possession at time of trespass is sufficient: 86 S. C. 358; 71 S. C. 337; 59 S. C. 131; 3 Strob. 473; 61 S. C. 311; 3 Hill 365; 60 S. C. 393.

<p>Before Jos. A. McCullough, special Judge, Marlboro, December, 1912.</p> <p>Action by G. D. Matheson against Marion County Lumber Company. Defendant appeals.</p> <p>cite: Rule's of construction: 23 S. C. 232; 2 Strob. 156; 42 S. C. 45; 79 S. C. 168.</p> <p>cite: A subsequent act will not recall life into an expired estate: 90 S. C. 179, 163; 52 S. E. 773; 55 L. R. A. 513; 6 L. R. A. (N. S.) 469. Exceptions to the rule requiring deed to be construed most strongly against grantor: 2 Kent. 556; 17 Ency. 14; 127 Am. R. 125; 21 Ency. 924; 144 U. S. 402; 70 S. E. 474, 629.</p>

Before Shipp, J., Edgefield, October, 1913. Action by Sallie Robertson against Western Union Telegraph Company. Defendant appeals on the following exceptions: (1) “In that his Honor erred' in admitting the testimony of J. L. Mims as to office hours at Edgefield and the reasonableness thereof — the Court ruling as follows: T have ruled that you can put in the paper and you can prove what you please as to conditions in Edgefield.

<p>Before Rice, J., Barnwell, October, 1913.</p> <p>Two cases (1) Florence Still against Harlan L. Creech, and (3) same against Isabelle C. Edgelle. Defendants appeal.</p> <p>Messrs. Willis & Patterson cite: 3 Rich. Eq. 379; 7 Wall. 385; 77 S. C. 331; 91 S. C. 487; 1 Rich. Eq. 404; 3 Hill 193; 17 S. C. 551; 13 S. C. 117; 5 Rich. Eq. 443; 14 S. C. 610; 3 Hill 193; 48 S. C. 440; 53 S. C. 563; 7 Rich. Eq. 363; 9 Rich. 63; 3 Hill 193.</p> <p>cite: 33 S. C. 47; 7 Rich. 407; 3 Strob. Eq. 175.</p> <p>cite: 4 Kent 338; Bail. Eq. 31; 7 Rich. Eq. 407; 36 S. C. 450; 33 T — 1 Oí CD T — i d m Oí Oí CD tn p *0 CD H** CO xH t-H d try 05 CO lO d try</p>

<p>Railroads — Issues.—When there is evidence that a switch engine was run across a street in a city at a reckless rate of speed, greater than permitted by the rules of the company without a proper lookout and without warning, and that these acts were the proximate cause of the death of an employee on the tracks and the defense introduces evidence tending to show the injured person was guilty of gross contributory negligence in attempting to cross the track, the issues should have been sent to the jury and1 not determined by the Court on motion for nonsuit.</p> <p>Distinguished from Drawdy v. Ry., 78 S. C. 375.</p>

<p>1. The service op a complaint by mail, where the summons has been served regularly without the complaint, is good, if it is deposited in the postoffice on the twenty-first day after demand for service when the twentieth day falls on Sunday.</p> <p>Mr. Justice Watts dissents.</p> <p>2. Process. — A complaint is a mere pleading and does not partake of the nature of “process.” Process defined.</p>

<p>1. Usuey — Notes.—The maker of a note cannot set up the plea of usury in a suit by the payee of the third renewal for usurious interest paid to the bank which discounted the second renewal and received the usurious interest.</p> <p>2. Exceptions. — Under an exception alleging error in finding so much due as principal, so much as interest and so much as attorney’s fees on a note because so much was not due, the point that a note of payee should not have been adjudged to be secured by the mortgage in issue should not be considered.</p> <p> The office and fo'rm of exceptions stated. </p>

<p>Before DeVorE, J., Greenville, September term, 1912.</p> <p>Indictment against B. G. Wade and Meta Wade for fornication. Defendants appeal.</p> <p>cite: Confessions inadmissible: 27 S. C. 27; 1 Strob. 156; 3 Ency. 343; 13 S. C. 395; 5 Rich. 399; 15 S. C. 545. Confession of one not admissible against the other: 1 Cyc. 960; 15 S. C. 540; 39 S. C. 57. One may be convicted: 30 S. C. 85; 49 Am. St. R. 208; 109 N. C. 764; 1 Cyc. 958; 41 Am. R. 248, 321.</p>

<p>1. Iístoictmejít — False Peetense. — An indictment alleging that the defendant represented the horse he was trading- to prosecutor to be sound in every respect should not he quashed on the ground that this allegation does not state a fact but a mere opinion. When the fact of the unsoundness of a horse is certain and the party stating it to be sound knows of the unsoundness and makes the statement with intent to cheat and defraud, it is a false representation.</p> <p>Mr. Justice Watts dissents.</p> <p>State v. Delyou, 1 Bay 353, distinguished from this case. Is it overruled?</p> <p>2. False Pbeteitse. — The evidence in this case sustains the verdict in that it is susceptible of the inference that the defendant in- swapping horses with the prosecutor represented his horse to be sound, when he knew it was nearly blind, with intent to cheat and' defraud.</p>

Before Shipp, J., February term, Anderson, 1913. Action by Alice and W. G. Gossett against Western Union Telegraph Company. Defendant appeals.

Petition by W. W. Ray ex rel. the State for injunction against the Sinking Fund Commission. cite: Resolution of Sinking Rund Commission parsed by less than a quorum is not valid: Sedg. Con. L. 38?; 11 S. C. 343; 88 S. C. 521; 52 S. C. 60; 86 S. W. 819; 21 Barb. 500; 22 Barb. 137, 400; 46 N. Y. 375; 49 Pac. 89; 31 Miss. 525; 9 Ark. 300; Mech. Pub. Off., secs. 572-3; 52 N. Y. 478; 74 S. E. 506; Harp. 139; 144 U. S. 1; 4 Tenn.

<p>Before W. B. de Loach, special Judge, Barnwell, November, 1911.</p> <p>Action by Alfred Aldrich against Southern Railway- Company and South- Carolina Railway — Carolina Division. Defendants appeal.</p> <p>cite: Special dmnages cmnot be recovered in this case: 83 S. C. 501; 85 S. C. 19; 81 S. C. 536; Moore on Cor. 432; 91 S. C. 417; 75 S. C. 355'; 59 S. C-. 539. No officer of the carrier can alter the rate to bind the carrier in damages: 12 I. C. C. R. 418; 27 S. C. R. 358; 202 U. S. 242; 204 U. S. 445; 16.1. C. C. R. 479; 158 U. S. 98; 39 S. E. 144;. 40 S. W. 899; 23 S. W. 1020; 43 L. R. A. 385; 50 S. W. 871; 21 S. E. 995; 5 S. W. 435; 49 S. W. 913; 63 Mot App. 145; 209 U. S. 56; 6 I. C. C. R. 85; 4 I. C. C. R. 385; 9 I. C. C.' R. 216.</p> <p>cite: State Court has jurisdiction: 204 U. S. 436; 223 U. S. 71; 88 S. C. 365; 130 S. W. 562; 123 Eed. 792; 15 I. C. C. R. 37; 69 S. E. 618; 216 U. S. 122. Measure of damages: 10 I. C. C. R. 696.</p>

<p>Before Spain, J., Barnwell, March, 1913.</p> <p>Action by Bessie Owens, by guardian, against Charleston and Western Carolina Railway Company. Defendant appeals-.</p> <p>contra, cite: As to punitive damages: 61 S. C. 189; 65 S. C. 336; 88 S. C. 14.</p>

Before Gary J., Marlboro, March term, 1913. Indictment against Wilson Spears for murder. Defendant appeals. cites: Proof of killing alone does not raise presumption of guilt: 1 Archbold 753; 53 N. Y. 16; 36 Texas 533; 49 Cal. 610; 14 Fla. 499; 39 S. C. 301; 6 S. C. 185; 15 S. C. 153; 30 S. C. 74. Hliminating all except self-defense was a charge on the facts: 87 S. C. 407; 3 Bish., sec. 697; Clarke 167; 50 S. C. 433; 79 S. C. 184.

<p>1. Constitutional Law — Capital Punishment — Electrocution.—The act of 1932, 27 Stat., 702, changing capital punishment from hanging to electrocution, provides a more humane method of inflicting the sentence and is not, therefore, an ex post facto law as to him who committed the crime of murder before its enactment and tried and sentenced since.</p> <p>2. Exceptions based on grounds not stated in record will not be considered.</p> <p>3. Exceptions to the admission of evidence not shown to have been prejudicial to appellant will not be considered.</p> <p>Mr. Justice Woods thinks the evidence here admitted was prejudicial.</p> <p>4. Evidence. — An instruction that “the opinion of experts like any other testimony in the case must be weighed as other facts are considered” held to mean -if the jury believe the testimony of an expert, they were not to disregard it.</p> <p>5. Ibid. — Confessions.—The instruction here that a free and voluntary confession is competent evidence to be considered by the jury, as it was here given in a hypothetical sense, is not a charge on the facts.</p> <p>6. Charge. — An appellant who fails to present a request on a point he thinks applicable to the case, should not complain if the Judge overlooks it.</p> <p>7. Jurors. — No abuse of discretion having been shown in the Court in standing aside a juror who had been bound over as a witness for the defense by mistake and in allowing another to be presented who had formed an opinion from hearing the testimony at the inquest, exceptions thereto are overruled.</p>

Before R. O. Purdy, special Judge, Greenville, October, 1912. Indictment against T. U. Vaughn. Defendant appeals. cite: Statute providing for electrocution is ex post facto: 134 U. S. 171; 43 B. R. A. 157; 37 A. S. R. 587. Court should advise prisoner of effect of plea: 14 C. Dig. 1233; 22 B. R. A. (N. S.) 463; 41 Cal. 458; 73 At. 637; 88 S. C. 225; 12 Cyc. 353; 42 Miss. 639; 63 S. C. 170. The Solicitor cites: As to indifference of juror: 65 S. C. 242; 69 S. C. 295.

<p>Chais- Gasg. — Under the proviso to sec. 957 of the Code of 1912, the county chain gang should not be worked as near as a town block to the employees of a road contractor, but as the status of the Codes is now before the Court for adjudication, this issue should be determined by the Court.</p>

Before Ernest Moore, special Judge, Fairfield, September, 1910. Action by Southern Power Company against B. F. Cassels. Plaintiff appeals.

<p>Motion by plaintiff to dismiss defendant’s appeal from order refusing new trial.</p>

<p>Mandamus — Foreign Insurance Cos. — There being no abuse of discretion on the part of the Insurance Commissioner in refusing to revoke the license of a foreign insurance company, or that it was capriciously or arbitrarily exercised on a rule to show why license should not be revoked for removing a case against it from the State into the Federal ‘Court, the plaintiff in that case has no right to mandamus to require the commissioner to revoke the license as he shows no injury from refusal to revoke.</p>

<p>1. Foreign Laws. — There being nothing in this case making the law of other jurisdictions germane to the issues and no proof of such laws, it was proper to refuse a request as to the effect of statutes of other jurisdictions relating to conflicting conveyances.</p> <p>2. Real Property — Common Source. — When both parties claim land from a common source, the defendant cannot take advantage of any defect in title in the common source.</p> <p>3. Adverse Possession. — The instruction as to adverse possession under the proof and admitted facts was wholly in favor of appellant.</p> <p>4. Limitation op Actions. — Under a devise to A and B and in case A and B die, leaving no children, then over, the statute of limitations does not begin to run against remaindermen until the death of A and B.</p> <p>5. Mortgages. — Where one having a life estate in land gives a mortgage thereon which is marked paid in full by mortgagor and turned over to him for his benefit, those claiming title through the mortgagor cannot insist that the life tenant was in possession as mortgagee.</p>

<p>1. Carrier — Freight.-—The Carmack amendment does not relieve the terminal carrier of an interstate shipment of liability for damage or loss on its line.</p> <p>2. Ibid. — Ibid.—Action.-—The party to whom goods are sold, in whose name the B/L is made out and to whom it was sent, is the proper person to sue for damages or loss of goods by carrier. That the seller indemnified the buyer against the costs and expenses of the suit does not alter the right.</p> <p>3. Ibid. — Act of God. — The burden is on the carrier to show goods were destroyed by act of God and that it exercised due care to prevent the consequences. The Courts of this State do not follow the Federal rule as to the burden of proof in such cases.</p>

<p>Statute of Frauds — Chattel Mortgages. — Where one executes to a merchant an agricultural lien and chattel mortgage to secure advances of money or goods to be used in making a crop and he informs mortgagee that he wants thereunder certain articles of more than $50 value and the mortgagee enters them on his books, but the memoranda is not signed by the mortgagor nor goods accepted by him, the statute of frauds applies.</p> <p>McNeill v. Conyers, 80 S. C., 571, distinguished from this case.</p>

<p>Before Memminger, J., Colleton, July, 1912.</p> <p>Action by J. F. Strickland against Fairfax Furniture Company, in Court of magistrate J. E. Bryan. From Circuit order reversing magistrate’s judgment, plaintiff appeals.</p> <p>cite: Defendants zvaived objection to jurisdiction by remaining during the trial: 69 S. C. 278. All parties should be sued: 78 S. C. 302.</p>