Volume 96 — South Carolina Reports

Before Sease, J., Richland, Action by A. W. Wynne against Seaboard Air Line Ry., in court of FI. F. Beuchel, magistrate. From Circuit judgment affirming judgment of magistrate, defendant appeals. cite: Meaning of liberty to contract: 165 U. S. 578; 41 S. C. 237; 45 S. E. 327; 2 L. R. A. (N. S.) 591; 50 Am. R. 639. Police power does not apply here: 33 S. C. 103; 53 S. C. 259, 288; 78 S. C. 451; 152 U. S. 137; 50 Am. R. 646; 80 S. C. 188; 4 Wall. 277; 18 R. R. A. 546.

<p>Before Shipp, J., Anderson,</p> <p>Indictment against Milton Fant. Defendant appeals.</p> <p>cite: 23 Cyc. 182, 210.</p> <p>Messrs Hood & Sullivan cite: 63 S. C. 101; 58 S. C. 433; 2 McM. 234; 42 S. C. 231; 87 S. C. 443; 112 Pac. 32; 77 Am. St. R. 390; 73 S. C. 116; 49 S. C. 171; 55 S. C. 225, 251.</p>

<p>1. Charge — Evidence.—The instruction here complained of that the Court instructed the jury that the appellant could only recover by proving his case by a clear preponderance of the testimony, could not have misled the jury, as he explained that he meant by “clear preponderance” the “greater weight.”</p> <p>2. Ibid. — Instructing the jury as to the law applicable to any facts proved, and stating admitted or noncontested facts, is not a charge on the facts.</p> <p>3. Issues. — While in trying issues out of chancery it is better for the Judge not to tell* the jury he is not bound by their findings, appellant was not prejudiced by his so saying in this case.</p> <p>4. Exceptions alleging error in refusing new trial moved on grounds stated only in the exceptions are too indefinite.</p>

<p>Before Bowman, J., Lexington, February term, 1913.</p> <p>Action by Citizens Savings Bank of Columbus, Ohio, against D. F. Efird et al. Plaintiff appeals.</p> <p>cites: Change of name does not alter powers of bank: 7 Ency. 687; 62 Fed. R. 678. Defendants not mislead, by variance: 33 S. C. 562; 6 S. C. 130; 55 S. C. 90; 82 S. C. 311.</p> <p>cite: Motion to amend is addressed to Court’s discretion: 18 S. C. 315; 70 S. C. 550. Amendment stating a wholly different and neve cause of action is not proper: 18 S. C. 513; 24 S. C. 474; 119 Fed. 706; 21 S. C. 26, 225; 81 S. C. 574; 82 S. C. 409. Plaintiff had no cause of action: 34 Ark. 144; 14 N. Y. 506; 60 Conn. 393; 1 Cyc. P. & P. 546; 82 S. C. 409.</p>

Before SeasE, J-, York, Fall term, 1912. Action by Raura E. Parish against Town of Yorkville. Plaintiff appeals. Messrs. Marion & Marion cite: Where statutory condemnation is given, it is exclusive: 68 S. C. 179; 47 S. C. 484. These statutes do not apply here: 38 S. C. 308; 59 S. C. 377. The Court of Common Pleas is the Court to give the relief: 59 S. C. 377. Plaintiff cannot be deprived of her property without compensation: 221 U. S. 636; 172 U. S. 269.

Petition by H. G. Bates and others on the motion of the State for an injunction against the board of county commissioners of Richland county. Motion to require relators to give bond.

<p>Before Rice, J., Hampton,</p> <p>Action by J. R. Hoover against James F. Thames & Sons. Plaintiff appeals.</p> <p>cite: "Counterclaim not permissible: 30 S. C. 167; 54 S. C. 400; 90 S. C. 122. When equitable relief may be given: 45 S. C. 111.</p> <p>cite: No particular form for alleging counterclaim: 61 S. C. 320. Damages may be set up for breach of oral agreement: ■61 S. C. 166; 90 S. C. 454; 93 S. C. 99; 26 Stat. 161.</p>

<p>Injunction. — Where the right is not very clear and beyond reasonable question, one Justice should not grant temporary restraining order pending appeal from. Circuit order refusing temporary injunction.</p>

<p>1. Guardias- — Probate Court. — Pending applications for administration the probate court may appoint as general guardian of the minor children of deceased under fourteen one applicant for administration on petition of mother with whom children reside without notice to other applicant.</p> <p>2. Admintstratios-. — The probate court may appoint as administrator of a deceased husband, killed by a roilroad company, one not related, who is guardian of the minor children and is the choice of the widow who has renounced in Ms favor, in preference to the half brother and brother of deceased.</p>

Before Mrmmingbr, J., Union, Action by Union B. & L. Association against R. Lindsay McNally. Held: as contended by plaintiff, that defendant should not have credit in ascertaining the amounts due on the debts sued on evidenced by the bonds set out in the case, for interest and premium, paid on the loan appearing on his pass book as made in May, 1901, and which was settled before the $600 loan was made, an entirely different and…

Before Jos. A. McCurrough, special Judge, Marlboro, Action by Bennettsville & Cheraw Railroad Company, against Glens Palls Insurance Company. Defendant appeals on the following exceptions: 1. “It is respectively submitted that his Honor, the presiding Judge, erred in overruling the objection of defendant’s counsel to the testimony of E. H. Duvall and other witnesses as to an agreement between said Duvall, representing Alex.

Before Spain, J., Marion, Action by Annie Law Gresham- against Atla'ntic Coast Lumber Corporation. Plaintiff appeals. Complaint. “The complaint of the above named plaintiff respectfully shows to- the Court: First. “That the plaintiff is a resident of the county of Marion, said State.

Before Prince, J., Colleton, Action by M. J. Crosby and others against Wiggins Land Company and others. Defendants appeal. Messrs. Padgett, Lemacks & Moorer cite: One signing a deed conveying an interest he knows he has in property, is bound by his act: 63 At. 998; 53 W. Va. 515; 61 Id. 477; 95 S. W. 451; 56 Minn. 534; 104 Mich. 180; 62 Pac. 1067.

<p>1. Pleadings — Banks.—Where a bank charges checks drawn on one account to another and it desires to show that both accounts were the individual funds of the depositor, and to insist that it be allowed to set off the checks against the account to which they were charged, it must plead such defense.</p> <p>2. Charge — Banks.—There being- no proof that any fiduciary funds were included in deposit to the credit of one as “admx.” it was error to admit in evidence the will of depositor’s husband, and this Court, not being satisfied the trial Court clearly instructed the jury not to consider this evidence and because of his refusal to give appellant’s request on the point, the error is held prejudicial.</p> <p>3. Ibid. — Stating admitted or undisputed fact is not a charge on the facts, but in this case the instruction “if A was authorized to draw on this account and drew on that, he did what he had no right to do and if the bank paid the check it did what it had no right to do” is on the facts, as one of the issues in the case was that the depositor had authorized A to draw on both accounts and had acquiesced in his doing so.</p> <p>4. Ibid. — Appeal.—Where appellants’ attorney sits by and hears the Judge misstate the issues and does not call his attention to it he cannot afterwards except to it on appeal.</p> <p>5. Ibid. — But when he withdraws from the jury one of the issues in the case by narrowing them and by so stating them as to state a fact at issue, he charges on the facts.</p> <p>6. Ibid. — Principal and Agent. — When the Court gives the general rule that when one deposits money in a bank it is the duty of the bank to show it has been properly paid out, it is the duty of appellant to request that when general authority to draw checks is shown in an agent of depositor, it is the duty of depositor to show any limitation of that authority and notice thereof if he relies on that.</p>

<p>Before G. W. Ragsdale, special Judge, Horry,</p> <p>Action by John A. Huggins et al. against Georgia Page Price. Plaintiffs appeal.</p> <p>cites: No power to appoint by deed: 14 S. C. 538; 38 S. C. 545; 43 S. C. 373; 4 Rich. Eq. 475; 84 S- C. 464. As to estoppel: 70 S. C. 195; 79 S, C. 407; 67 S. C. 454.</p> <p>cites: Donee could appoint by deed: 84 S. C. 464. Bstoppel: 33 S. C. 359.</p>

Before MemmingI;r, J., Abbeville, Action by Ressa G. McAulay against Minna M. McAulay, in her own right and as executrix. Plaintiff appeals. cites: Case not within statute of frauds: 3 Dess. Eq. 514; 57 S. C. 576; 36 S. E. 780. Defendant is estopped from setting up the defenses interposed: 9 A. & E. Ann.

Before SeasE, J., Action by Farmers Bank and Trust Co. and T. J. Straight against Southern Trust Co., Charlotte Trust Co. et al. Defendants, Southern Trust Co. and Charlotte Trust Co., appeal.

Before Spain, J., Dillon, Action by Marion County Lumber Company against, C. P. Plodges. Plaintiff appeals. cite: Use of logging road should not be enjoined: 69 S. C. 176; 71 S. C. 64; 75 S. C. 330; 69 S. C. 554. Bond should have been required: 51 S. C. 379; 73 S. C. 550; 83 S. C. 78; 89 S. C. 189; 73 S. C. 35; 5 S. C. 159. Moving timber felled should not be enjoined: 33 Cyc. 834; 1 High on Jnj., sec. 673; 5 Barb. 486; 6 Barb. 507; 9 Am.

<p>Before DeVore, J., Edgefield,</p> <p>Action by Batesburg Cotton Oil Company against C. E. Jones, John Bell Towill and Citizens Bank of Batesburg. Defendant Towill appeals.</p> <p>cite: Meaning of “settlement up to date:” 1 Strob. 61; 4 Strob. Eq. 103 ; 93 Inch 147; 1 Hill 512; 4:9 N. E. 798; 58 S. C. 56; 17 S. C. 42, 595. Burden of proof in confidential relations: 2 Strob. Eq. 297; Jones on Ev. 229; 94 N. C. 581; 117 111. 597; 36 N. J. Eq. 174; 22 N. Y. 327.</p> <p>cite: Parties by agreement may empower chancellor to hear all matters covered by the agreement: 27 Cyc. 13, 3; 30 S. C. 301; 48 S. C. 174; 10 Rich. Eq. 339; 85 S. C- 285.</p>

<p>1. Nonsuit — Verdict—Res Judicata. — The rules governing nonsuit apply in motions to direct a verdict, and where this Court on previous appeal has reversed an order of nonsuit, it will sustain refusal to direct verdict for defendant, when the only difference in the trial is that on the second defendant had more evidence on the issues.</p> <p>2. Master and Servant — Ibid.—-And such former adjudication settles the issue as to whether a servant was a superior officer or agent to the one injured, and the finding that he was renders the master liable for injuries received from obeying his orders and using a machine furnished by him to the injured servant, whether it was the machine designated by the master for that particular use or not.</p>

Before -Spain, J., Darlington, Action by T. C. McSwain against Atlantic Coast Lumber Corporation and S. U. Davis. Compraint. “The complaint of the above named plaintiff respectfully shows to the Court: For a first cause of action: I. “That the defendant, Atlantic Coast Lumber Corporation, is a 'corporation duly chartered and organized under the laws of the State of South Carolina.

Before Rice, J., Lee, Spring term, 1912. Action by Trexler Lumber Co. against Edwin Wilson. Defendant appeals. cites: An agreement to take back gives the other party the right to rescind: 2 Brev. 304; 2 N. & M. 64; 1 McC. 537; Chev. 190; 2 Rich. '40; 2 Strob. 249; 37 S. C. 17; 74 S. C. 202. Charge on facts: 47 S. C. 523. Tender must be unqualified: 80 Eed. R. 16; 1 N. & M. 196; 2 Bail. 274; 39 S. C. 4; 88 S. C. 538; 56 Eed. 630; 38 Am.

<p>1. Mutual Iítsuiíaítce Cos. — The Cakoliha Mutual Ihsukance Co., under the statute and its constitution, may accept a cash premium from a member and guarantee him against assessment for one year. Corey v. Sherman, 32 L. R. A. 490, distinguished from this case.</p> <p>2. Ibid.- — Estoppel.—Where an agent of such company makes such a contract with a member, the company is estopped from asserting it has no power to make such contract, although the acts of the agent were without his authority.</p>

Before DeVorE, J., Greenville, Action by Monaghan Mills et al. against Gilreath Mfg. Co. et al. F. W. Poe Mfg. Co., Brandon Mills, of the plaintiffs, and the receiver of the defendants appeal. Master's Retort.

<p>Constitutional question arising in Bx parte Fred. H. Dominick against A. W. Jones, Comptroller General, submitted to Court en banc.</p>

Before Gage, J., Richland, Action by Roberta C. Stone against Atlantic Coast Line Railroad Company, Tindal and J. C. McDaniel. Defendants appeal. cite: Leading questions: Jones on Ev., secs. 372, 381; 85 S. C. 103. Declarations of servant as to negligence after accident is not binding on master: Jones on Ev., sec. 164; 1 Labatt 416, 192-3; 3 Elliott, sec. 1292; 107 U. S. 454.

<p>Before C. J. Ramage, special Judge, Dillon, October term, 1912.</p> <p>Action by Kate E. Donaldson against L. W. Temple. Defendant appeals.</p> <p>cite: Damages must be proved with reasonable certainty: Page on Con., sec. 1675; 81 N. W. Ill; 37 S. E. 4; 25 S. C. 68; 81 S. C. 181; 40 S. C. 524; 70 S. C. 16; 60 S. C. 269. All the facts constituting the alleged fraud must be set out: 65 S. C. 184; 58 S. C. 56; Cooley on Tort. 474.</p> <p>cites: No fraudulent breach being alleged, punitive damages cannot be recovered: 77 S. C. 192; 70 S. C. 115; 91 S. C. 420.</p> <p>cite: Alleging facts which were wrong fid or necessarily fraudulent is sufficient: 68 A. S. R. 777; 22 A. S. R. 126; 70 S. C. 108; 53 A. S. R. 527; 11 A. S. R. 351; 65 S. C. 179; 12 S. C. 1; 56 S. C. 241.</p>

Before Wilson, J., Darlington, Spring term, 1912. Action by Wiley Slater and Amos Slater against W. W. Price and Irvin Price. Defendants appeal. Judge's Charge. “Mr. Foreman and Gentlemen of the Jury: Wiley Slater and Amos Slater, as plaintiff’s sue W. W. Price and Irving Price for damages.

Before Frank B. Gary, J., York, February term, 1913. Action by Samuel M. McCollough et al. against J. T. Spencer. Plaintiffs appeal. cites: Deed does not create a fee conditional: Gray against Perpetuities, chap. 2, sec. 14; 64 S. C. 216; 1 Hill Eq. 282. Children not synonymous to heirs: 16 S. C. 227; 83 S. C. 270; 77 S. C. 227; 6 Rich. Eq. 401; 4 DeS. Eq. 400; 25 S. C. 289; 64 S. C. 216; 6 Coke, 16; 27 S. C. 524. Office of parts of a deed: 2 Black 298.

Before Copés, J., Barnwell, Action by H. C. Huggins against Atlantic Coast Line R. R. Co. and Peter Wilson. Defendant railroad company appeals. cite: Duty of master to employ competent servants: Elliott on R. R., sec. 1284; 77 S. C. 550. Bvidence as to specific incidents of incompetency not alleged, incompetent: Jones on Ev. sec. 165; Elliott, sec. 1796.

Before Prank B. Gary, J., Spartanburg. Action by Midland Roofing Mfg. Co. v. R..O. Pickens. Plantiffs appeal. cite: A special contract must be in writing: 2 Abbott’s Tr. Br. 1349, 1383; Anderson’s Law Die. 961, 248; Bishop on Con., sec. 104; 9 Cyc. 242. cite: Parol contract may be substituted for a written one: 79 S. C. 143. Parol evidence is admissible on point on which writing is silent: 68 S. C. 523; 21 Ency. 1094; 21 S. C. 608.

<p>1. Jurisdiction — Injunction—Receiver.—This Court has jurisdiction in an equity case to enquire whether an interlocutory injunction has been properly dissolved and whether it was error to refuse to appoint a receiver.</p> <p>2. Receiver — Partnership.—Where the showing is that two persons are engaged in a joint enterprise, and that one of them has full power to collect obligations due them, that he does so collect but neglects to apply them to joint obligations, to the detriment of the joint business, a receiver should be appointed.</p>

<p>Before Frank B. Gary, J., Richland,</p> <p>Action by Mary Nunnamaker, by guardian ad litem, against Smith’s and H. K. Smith. Defendants appeal.</p> <p>cite: This action should not be maintained against the defendants jointly: 141 N. W. 515; Newell 382; Odgers 601; Townsend 99; 25 Cyc. 434; 24 L. R. A. (N. S.) 955; 9 B. Mon. 198;'19 R. I. 496; Cooley on Torts 124; 59 S. 647. Words used are not actionable: Newell 41; 80 Mo. 367; 75 Ala. '158.</p> <p>cites: A corporation and an individual may be joined in such action: 62 S. E. 774; 18 Ency. 1057, 1059; 98 N. C. 43; 35 L. R. A. 622; 65 S. C. 338; 65 S. C. 344; 28 R. R. A. 440; 179 U. S. 133 ; 200 U. S. 214; 25 Cyc. 427; Odgers 371; 45 S. E. 875; 95 S. C. 124. Examples: 82 S. C. 818; 98 N. C. 34; 172 U. S. 534; 69 R. R. A. 103; 42 R. R. A. (N. S.) 517. Words actionable per se: 76 S. C. 512; 2 Rich. 583; 93 S. C. 475; 27 R. R. A. (N. S.) 1038; 22 S. C. 374; 72 S. E. 451; 116 N. C. 470. No allegation or proof of special damages necessary: 16 S. C. 436; 22 S. C. 376; 37 S. E. 157; 82 Va. 239; 12 S. E. 644.' Defendants are also guilty of false arrest and, detention and forcible trespass: 73 S. C. 186; 81 S. C. 223; 76 S. C. 214; 7 R. R. A. (N. S.) 928. Causes of action are properly joined: Code of Proc. 216; 73 S. C. 189; 82 S. C. 559; 64 S. C. 495; 65 S. C. 225, 126; 47 S. C. 214.</p>

<p>Before Gage, J., Marlboro.</p> <p>Action by Mary S. Everett against Bennettsville and Cheraw Railroad Co. and Hickson Lumber Co. Defendant railroad company appeals.</p> <p>cite: It is important for defendants to know which is liable: 93 S. C. 384; 85 S. C. 452; 7 Ency. 365; 21 Am. R. 647; 4 Wall. 657; 30 Am. St. R. 685; 65 S. C. 344 337.</p> <p>cites: New trial should be granted as to both defendants: 73 S. C. 181.</p>

<p>Recorder/s Court — Witnesses.—A request of a city recorder by attorney for defendant that the testimony be taken in writing, does not absolve the attorney from the duty of noticing during the trial that his request is complied with and that the testimony is signed by the witnesses.</p>

<p>New Trial — Jurors.—New trial granted because of relationship of juror to deceased. As this Court cannot say from the order passed whether the new trial was granted in the discretion of the Court or because controlled by law, this Court assumes it was granted in his discretion and affirms the order.</p> <p>The better practice is for the Court to say- in such order on what ground they are based.</p>

<p>1. Appeal. — Where the record shows that “Judgment was entered and notice of appeal duly served” respondent is in no position to move dismissal of appeal on ground that there is no valid notice of appeal. Besides, the record shows the case was tried during the October term. Notice of appeal from judgment entered or to be entered served November 13. Order refusing new trial filed December 23.</p> <p>2. Master and Servant — Fellow Servants. — Under the evidence in this case the engineman and the brakeman piloting the engine in a switching yard are fellow servants acting under orders from the yardmaster, and where the brakeman is injured by the negligence of the engineman while performing the duties of engineman, the railroad company is not liable.</p>

<p>1. The Codes contain the only general statutory laws of the State in force.</p> <p>2. Agricultural Lien. — A landlord has an agricultural lien on his tenant’s crops for advancement made to him during the year, without a written contract, but to preserve the priority of the lien against subsequent creditors and purchasers it must be written and indexed.</p> <p>The Cheep Justice, Associate Justice Watts and Judges Memhiinger, Wilson, Frank B. Gary and iSpain dissent.</p>

<p>1. Charge. — When the complaint is certain and definite in its allegations of negligence, it is not error of the trial Judge to decline to instruct the jury that the complaint does not allege the injury complained of was caused by lack of skill or incompetency in the engineer.</p> <p>2. Ibid. — Master and Servant. — So much of the charge complained of as relates to the statement by the Judge that the complaint alleged it was plaintiff’s duty to go on the car, but defendant denied it, when construed with the corrections thereof, is free from error.</p> <p>3. Ibid. — Ibid.—The charge here complained of construed to mean, if a master failed through negligence to furnish the servant reasonably safe appliances or a reasonably safe place to work and as a result of such negligence the servant is injured, the master is liable.</p>

Before SeasE, J., Lancaster, October term, 1912. Action by Jane E. Cauthen against Lancaster Cotton Oil Co. Defendant appeals. cite: Jury should have been restricted to damages occurring up to commencement of action: Harp. 276; 14 S. C. 434; 46 S. C. 677; 3 Suth. 403; 21 Ency. 730, 73.2. Defendant has the right to the reasonable use of its property: 42 S. C. 402; Woods on Nuisances, sec. 13.

Before Prank B. Gary, J., Richland, Summer term, 1913. Action by Ernest M. DuPre Co'. against Seaboard Air Dine Ry. Defendant appeals. cite: Penalty only applies to loss on terminal carrier: 78 S'. C. 36. Goods shown not to have been lost by defendant carrier: 75 S. C. 406. cite: Exception not founded in record will not be considered: 93 S. C. 367; 94 S. C. 135, 335; 95 S. C. 4.

<p>Before Gage, J., Marlboro,</p> <p>Action by T. C. Sherwood and J. C. Cottingham, exors. of James S. EeGette, against E. A; McEaurin et al. Plaintiffs appeal.</p> <p>Mr. McColl cites : Motion'did not come too late: 68 S. C. 297; 5 S. C. 351; 18 S. C. 479. Allegations irrelevant: 50 S. C. 67.</p>

Before Gaige, J., Marlboro. Indictment against Walter Rogers. Defendant appeals. cites: Party offering irrelevant evidence should connect it: 16 S. C. 575; 17 S. C. 139; 16 Cyc. 1114; 76 S. C. 375. It is error to send to the jury papers not in evidence: 39 Cyc. 808; 38 Cyc. 1833; 16 Tex. Civ. App. 544; 97 Me. 393; 38 Cyc. 1833; 3 Rich. 119; 3 Strob. 183, 416; 4 Rich. 597; 44 S. C. 538.

Before Ernest Gary, J., Sumter, Action by B. C. Irby against Southern Express Company. Defendant appeals. cite: Special damages are not recoverable unless the special circumstances were known to the pan'ty who broke the contract: 25 S. C. 71; 40 S. C. 524; 76 S. C. 338; 79 S. C. 157; 81 S. C. 536; 83 S. C. 503; 74 S. C. 295; 71 S. C. 82; 85 S. C. 22; 71 S. C. 211; 23 L. J. R. 179.

Before SeasE, J., Dillon, Action by R. W. Glenn against Atlantic Coast Dine R. R. Co. Defendant appeals. cite: The contract is valid: 39 S. C. 55; 79 S. C. 344; 94 S. C. 129. A party cannot repudiate the contract and claim under its provisions: 48 S. C. 901; 95 S. C. 68; 57 S. C. 322; 85 S. C. 179; 5 S. C. 545; 15 S-. C. 768; 22 S. C. 157. cite: The statute is not valid as applied to intrastate shipments: 78 S. C. 42; 81 S. C. 383.

<p>1. Contracts — Statute op Frauds — Issues.—In an action on a breach of a parol contract for personal services, where there is a controversy as to when the contract was made, it is proper to admit parol evidence as to the making of the contract and send to the jury the issue of when it was made.</p> <p>2. Ibid. — Ibid.—Where such parol contract is void because to commence at a future day, the parties can, on the day it is to begin, restate or make again the same contract which would then be valid.</p> <p>3. Ibid. — The master may discharge the servant if he fail to carry out his part of the contract.</p>

<p>Before Gage, J., Sumter,</p> <p>Action by Sam’l M. Broom against Atlantic Coast Line R. R. Co. Defendant appeals.</p> <p>cite: Presumption of negligence is rebuttable: 55 S. C. 389; 77 S. C. 55; 83 S. C. 53. Bxpert evidence: 59 S. C. 311; 90 S. C. 296.</p> <p>cite: No abuse of discretion in ordering the case to trial: 75 S. C. .150. As to expert evidence: 59 S. C. 311; 32 S. C. 127; 62 S. C. 28L</p>

Before Frank B. Gary, J., Richland.. Action by Nora Ellen McManus against Prudential Insurance Company of America. Defendant appeals. cite: Waiver by local agent could not bind the company unless ratified by it: 29 S. C. 582; 1 Joyce Par. 539; 19 At. 386; 19 Ency. 57. Issue of waiver was for Court: 83 S.'C. 261; 46 S. C. 546; 54 S. C. 544; 88 S. C. 221; 70 S. C. 75; 139 Pa.

<p>1. Motions for new trials on after-discovered evidence should be prosecuted with due diligence. Under the circumstances here it was not error to decline to continue such motion for the term in the absence of good and satisfactory reason therefor, nor to permit movant to withdraw the motion.</p> <p>2. New Trials. — The record here does not sustain the objection that the trial Court did not consider all the evidence submitted on the motion.</p> <p>3. Ibid. — Continuance.—Refusal to continue such motion until morning that movant might reply to affidavits offered by respondent is not borne out by the record, nor was it made to appear that movant could have strengthened its case by morning.</p>

Before Sease, J., Clarendon, Two cases, (1) Sam Strikes against Southern Express Co., and (2) Peter Blanding against same. From Circuit decree reversing magistrate, defendant appeals. cite: Shipment not being lost, penalty is not recoverable: 79 S. C. 298 : 82 S. C. 307. cites: “Carmack Amendment does not apply: DuPre v. R. R., Mss.; Varnville v. R. R., Mss.; 79 S. C. 200. Penalty attaches for wilful failure to deliver: 84 S. C. 350.

<p>Before F. B. Gary, J., Richland, May term, 1913.</p> <p>Action by Ruby Burns by guardian against Francis D. Kendall. Defendant appeals.</p> <p>cites: Defendant’s denial that his act cathsed the collision raised an issue on that-point for the jury: 85 S. C. 271; 68 S. C. 162. Issue of proximate cause is for jury: 90 S. C. 281; 83 S. C. 359. If defendant’s negligence contributed as a proximate cause, plaintiff is not entitled to recover: 29 S. C. 101; 30 S. C. 166; 61 S. C. 355; 59 S. C. 322.</p> <p>cite: Reckless disregard of duty carries issue of punitive damages to jury: 91 S. C. 541;.93 S. C. 552; 92 S. C. 75. Streets of Columbia are treated as public highways: 5 Rich. 603; 69 S. C. 20; 67 S. C. 520; 74 S. C. 539. It is negligence per se to violate a statute: 91 S. C. 542; 92 S. C. 80; 90 S. C. 277 ; 83 S. C. 357. Clmrge as to contributory negligence is clear: 91 S. C. 517; 83 S. C. 28.</p>

<p>Deeds — Delivery—Fraud.—The findings by the Circuit Judge and referee in this case that a deed executed by an aged and infirm lady to her son was never delivered or intended to be delivered and that the presumption of fraud arising from the relationship of the parties had not been rebuttted, are held to be amply supported by the evidence. In such case the appellant must satisfy the Court that the preponderance of the evidence is against the finding's below.</p>

<p>• Before Gage, J., Berkeley,</p> <p>Action by D’Orrielle Harmon against Angel Harmon et al. Plaintiff and defendants, Angel Harmon and Marie Harmon, appeal.</p> <p>cites: Evidence not obnoxious to section 400: 47 S. C. 488; 53 S. C. 18; 52 S. C. 371; 58 S. C. 469; 57 S. C. 472; 56 S. C. 385. As to admissions of a party: 11 Mo. 3; 1 Enc. of Ev. 596; 1 Ency. 714. Resulting trust: Speer’s Eq. 20; 1 Strob. Eq. 103, 96; 4 Des. 491; 16 S. C. 256; 23 S. C. 251; 47 S. C. 126; 59 S. C. 203, 457.</p>

Before Spain, J., Calhoun, Action by J. C. Hamilton against Western Union Telegraph Company. Defendant appeals. cite: Mere change of letter in address will not warrant punitive damages: 83 S. C. 22; 82 S. C. 87. Showing effort to deliver overcomes presumption of wilfulness from long delay: 84 S. C. 482; 90 S. C. 539. There was no notice on face of telegram that it related to sickness or death: 90 S. C. 503; 93 S. C. 119; 81 S. C. 235; 77 S. C. 148.

<p>Before Mr. Associate Justice Watts.</p> <p>Petition by F. H. Dominick to1 Associate Justice Watts for writ of mandamus against A. W. Jones as Comptroller General.</p> <p>From order refusing the writ, the Comptroller General appeals.</p>

<p>Before Wilson, J., Hampton,</p> <p>Action by Ficken Jordan Company against J. D. Lang-ford et al. Walter M. Robinson, receiver, appeals.</p> <p>The second report of the referee is substantially as follows :</p> <p>“The undersigned referee, to whom it has been referred by the order of the Hon. H. F. Rice, presiding Judge, dated 21st June, 1912, ‘to ascertain and report the amount of costs and _ disbursements from this .proceeding, and to apportion the same among the respective parties hereto, according to their legal rights and liabilities therefor,’ with leave to report any special matter, begs leave to report:</p> <p>“That he held a reference at Hampton, S. C., on August 2, 1912, when he was attended by counsel and the receiver. That it appeared that the amount of costs and disbursements chargeable in the above entitled action, were as stated in the receiver’s report, up to June 19, 1912, one thousand and fifty-one dollars and seventy-one cents; to which should be added as the expense of this reference, a fee of twenty-five dollars and six dollars and ninety cents, expenses, for the referee holding this reference and making this report,, and fifty dollars as a fee for the receiver’s attorney representing him at this reference. I therefore find that the total costs and disbursements chargeable againts the fund are eleven hundred and thirty-three and 61-100 dollars, up to and including the filing of this report.</p> <p>“Mr. Hiers, attorney for the Georgia Railroad Bank, plaintiff in several of the above actions, urged that he was entitled to a fee to be paid out of the common fund, for his services in bringing said actions.</p> <p>“He cited the cases of Walker v. Killian, 62 S. C. 483, and Priedham v. Crescent Mills, 64 S. C. 277.</p> <p>“I do not report such fee for him, as under my view of the legal rights of the parties, an attorney for a subsequent incumbrancer is not entitled to costs, nor is his client entitled to attorney’s fees under the stipulation in its mortgages out of the proceeds of sale of the mortgaged lands, until the debts and costs of all prior incumbrancers have been satisfied. Wiltsie on Mortgage Foreclosures, sections 852 and 853. See, also, Lithauer v. Royle, 17 N. J. Eq. (2 C. E. Gr.) 40.</p> <p>“In my report, as referee in the above entitled causes, filed June 20, 1911, I recommended that the costs and disbursements in the above entitled actions, including the costs of the receivership,' ‘should be divided pro rata and distributed according to the amount realized from the sale of the several pieces or parcels of land,’ and ‘the balance of the proceeds of sale derived from several pieces of land, lots or tracts, should be distributed among the lien creditors in accordance with the priorities set out in paragraphs 17 to 27, inclusive, of this (that) report.’</p> <p>“That recommendation was confirmed by the decree for sale. * * *</p> <p>“The direction of Judge Kershaw, that all of the costs in American etc. Co. v. Moody, 40 S. C. 188, 189, should be first paid out of the proceeds of sale, before anything was applicable to the mortgage and judgment debts, was not excepted to; and does not appear to have been considered on appeal.</p> <p>“I therefore -apportion the amount of expenses of sale, costs and disbursements in the above entitled causes, including the expenses of the receivership, among the respective parties, according to their legal rights and liabilities, under my former report, as modified by the decree rendered by Judge DeVore, in said causes, as follows: * * *</p> <p>“Mr. Warren argued before me, that. I should report as special matter, that after the payment of costs, or the proportionate share thereof chargeable, to each lot or parcel of land, as above concluded by me, the receiver should pay each lien creditor the entire amount secured by his lien, with interest from the date of the decree, or report therein confirmed, down to the date of actual payment or settlement by the receiver.</p> <p>“This is a matter to be determined by the construction of Judge DeVore’s decree. I have not now a copy of that decree before me; but from my recollection of it, I think the position urged by Mr. Warren is correct. It is in accord with the practice in Pennsylvania, as stated in 22 Cyc. 1553, and I think with the practice in this State in foreclosure cases, but I know of no decision of our Supreme Court upon this point.”</p> <p>cites: 64 S. C. 277.</p>

Before Rice. J., Hampton, Petition of I. P. Faust et al, In re B. J. Rhame as State Bank Examiner, against Bank of Brunson for removal of receiver. Mr. W. M. Robinson, receiver, appeals. The Circuit order removing the receiver is: “The above-named petitioners claim to be creditors and stockholders of the Bank of Brunson, and come before this .Court asking that the present receivers for said bank, W. E. Richardson and Walter M. Robertson, be removed from office.

<p>Before Shipp, J., Newberry,</p> <p>Action by D. S. Knox against J. AM. McKee. Defendant appeals.</p> <p>cites: 4 Pom. Eq. Tur. 1361; 1 Hill 19.</p> <p>cites: 15 Ala. 501; 4 Conn. 297; 5 Del. Ch. 492; 68 Ga. 774; 31 Ga. 26; 76 Am. Dec. 681; 13 Ga. 140; 51 Ind. 365; 56 Fed. 756; 80 S. C. 243.</p>

<p>Before Bowman, J., Charleston,</p> <p>Action by Hugh W. White against Halsey Lumber Co. Defendant appeals.</p> <p>cite: 54 S. C. 343; 64 S. C. 130; 81 S. C. 372; 80 S. C. 516; 83 S. C. 292; 3 S. C. 447; 5 Har. 487; Wood on Nuisance, secs. 20, 618, 619, 301, 534; 6 Cush. 80; 89 Cal. 623; 53 Pac. R. 1118.</p> <p>cite: 1 Chitty on Plds. 206 S. C. 10; 21 Ency. 682; 3 Black 216, 683; 108 U. S. 317; 42 S. C. 413; 169 .Inch 177; 1 Wood on Nui. 1; 20 L. R. A. 844; 11 Rich. 217; 42 S. C. 402; 59 S. C. 572; 67 S. C. 524; 68 S. C. 163; S3 S. C. 287; 67 S. C. 181; 76 S. C. 362; 83 S. C. 1.</p>

Before Shipp, J., Greenville. Action by Rowena Greer against Western Union Telegraph Co. Defendant appeals. cites: The damages claimed being dependent on an intervening human agency, plaintiff cannot recover: 70 S. C. 418; 27 Ency. 1075-6; 37 Cyc. 1758; 72 S. E. 78; 71 S. C. 29; 54 S. W. 852; 16 N. E. 75; 50 S. E. 279; 124 U. S. 444; 154 111. 499; 72 S. C. 516; 77 S. C. 174; 70 S. C. 422.

<p>Before DeVore, J., Charleston, April term, 1913.</p> <p>Action by John D. Bize against Virginia-Carolina Chemical Co. Defendant appeals.</p>

<p>Before Shipp, J., Abbeville, October term, 1913.</p> <p>Action by J. H. Brooks against Southern Railway Co., in court of magistrate J. C. Martin. From Circuit order reversing judgment of magistrate, plaintiff appeals.</p> <p>cites: 85 S- C. 194.</p> <p>cites: 71 S. C. 273.</p>

<p>Before Prince, J., Abbeville,</p> <p>Action by W. E. Henderson against Abbeville-Greenwood Mutual Insurance Association. Defendant appeals.</p> <p>cites: This association can only insure property of its members: 53 S. C. 110; 61 S. C. 331. As to construction of contract: 9 Cyc. 579, 583. The policy is avoided by the assignment: 3 May on Ins., sec. 380; 33 S. E. 585.</p> <p>cite: Provision prohibiting assignment must be strictly construed: 53 Am. R. 303. Assignment of proceeds against assignment of policy: 19 Cyc. 636; 53 Am. R: 347; 56 Am. Dec. 750. Simple assignment against assignment as collateral: Kerr on Ins. 686-7, 689; Ostrander 505; 33 Mass., 76; 100 N. Y. 417; 7 N. Y. Supp. 143; 40 Tex. Civ. App. 184; 8 T. R. A. (N. S.) 907. Doubtful meaning should be construed against insurer: 46 L. Ed.. 73.</p>

Before Prince, J., Cherokee. Action by Chas. Baber, receiver, against Ed H. DeCamp, in court of magistrate J. M. Phillips. From Circuit order reversing judgment of magistrate, plaintiff appeals. cites: Stockholder cannot interpose such set off: 53 S. C. 583; 55 S. C. 79; 57 S. C. 53; 79 S. C. 9; Cook on Stockholders, sec. 193; 23 Ency. 846; Code 1912, 2660.

<p>Cities and Towns — Ordinances—Cider—Police Power — Constitutional Law. — The town of Dillon, under sec. 2994, Code of 1912, has authority to prohibit the sale of cider in the town except to those persons holding certificates of physicians that it is to be used for medicinal purposes. Such ordinance is a proper exercise of the police power and does not contravene either the State or Federal Constitution.</p>

Before Shipp, J., Charleston, Action by Prank Grimball against C. W. Parham Co., in Civil and Criminal Court of Charleston. The defendant moved to continue the case on the ground of the absence of material witnesses. The Judge held that he had not placed himself within the rule by showing the witnesses had been subpoenaed.

Before Ernest Gary, J., Richland, Action by Robert Little, administrator of W. A. Key and Susan Duncan Key, against Grand Lodge Knights of Pythias of South Carolina.

Before DlVore, J., Laurens, Action by L. H. Cunningham against Columbia, New-berry and Laurens R. R. Co. Defendant appeals. cite: Ordinance as to stopping trains at crossings is not for passengers alighting: 66 S. C. 528; 111 N. W. 390; 4 Elliott 1624a. Conductor had no authority-to bind company by promise to stop: 1 Elliott, sec. 302; 67 Fed. 522; 1 Elliott Ev., sec. 72.

<p>Before Rice, J., Florence,</p> <p>Action by W. M. Steele against Atlantic Coast Line R. R. Co. From order putting case on Calendar 3 for judgment by default, defendant appeals.</p>

<p>Master and Servant — -Attractive Nuisances — Issues.—When the evidence shows that a child employed by a manufacturing company fell into a pond maintained by the company and drowned and that he was guilty of contributory negligence and he and his mother assumed the risk of his employment, but the testimony is also susceptible of more than one inference, nonsuit should not be granted.</p>

Proceeding in the original jurisdiction of the Court by John L. Wardlaw against J. A. Alewine to determine the title to the office.of superintendent of the county poorhouse of Abbeville county.

<p>Pleading — Answer.-—-Imposing as a condition precedent for leave to answer out of time, giving a bond by defendant to secure the amount of any judgment obtained by plaintiff is not an abuse of discretion.</p>

Before Prince, J-, Greenwood. Action by Aurie H. Fuller against F. Graham Payne, treasurer of Greenwood county, on the following complaint: I. “That the plaintiff is a resident of the city of Greenwood, in the State and county aforesaid, but was, at the times hereinafter stated, also- residing' a part of each year at her home near Pickens Courthouse, S. C., and paying her taxes to the treasurer of Pickens county on her property inherited before her marriage, and that the…

Before Rice, J., Greenville, Action by Piedmont Mfg. Co. on the relation of the State against J. W. Goldsmith and Plendrix Rector, sheriff of Greenville county. The plaintiff and J. W. Goldsmith appeal. cite: Power of removal: 92 S. C. 458; Michem Off., sec. 445; 92 S. C. 485; 23 Ency. 437-8; 21 Am. St. R. 557; 51 Am. St R. 128; 50 N.'J. L. 338; 12 N. E. 107; 87 Am.

Before Bowman, J., Aiken. Action by Seminole Mfg. Co: against H. H. Howard.