Volume 97 — South Carolina Reports

• Proceeding on petition for writ of certiorari by D. B. Rawl and others, citizen taxpayers in the original jurisdiction of the Supreme Court to review the acts of the State Board of Canvassers on hearing and deciding an appeal from the county board of canvassers for Lexington county. Right to maintain action regardless of consent of Attorney General: Const. V. 4; Code of'Civ. Proc., sec. 11; 117 N. W. 257;-19 L. R. A. (N. S.) 613, 614; 32 Am.

<p>Elections. Qualification of Canvassers. Interest in Questions of Public Policy. Contests. Protest. Evidence.</p> <p>1. That one of the county board of canvassers had been employed and paid to circulate the petition for an election on the question of the sale of alcoholic liquors, and that another member of the board was a member of a town council which had employed him, though it was not shown that he voted to employ and pay him, did, not disqualify either from sitting on the county board of canvassers, since the interest in a case which will disqualify one from acting judicially therein must be something more than an interest in a question of public policy.</p> <p>2. The county board- of canvassers being required to meet on the Tuesday following an election on the question of the sale of alcoholic liquors to canvass the votes and declare the result, protests and contests should be filed on that day, and where the grounds of objection and protest, which contestants sought to have considered, where known or by the exercise of due diligénce might have been known to them in time to present them at such meeting, the board’s refusal of a continuance after adjournment to the following Saturday was not such a clear abuse of its discretion as would warrant a reversal of its action; since the Supreme Court will only correct a manifestly erroneous exercise of it resulting in prejudice to the complaining party.</p> <p>3. A protest in an election contest alleging in clear language that the entire vote of two boxes named should be rejected because the managers allowed all persons who offered, to vote, without requiring them to produce registration certificates, and proof of payment of taxes, by reasonable intendment alleged that the result would thereby be affected and made it a necessary inference that the voters did not produce their registration certificates and proof of payment of taxes.</p> <p>4. In a contest of an election on the question of the sale of alcoholic liquors, testimony of the managers of the election to prove allegations that voters in certain precincts had been allowed to vote without producing their registration certificates or proof of tax payments, and that the result was thereby affected, was admissible, since such testimony did not contradict the returns, which merely stated the result after stating the number of votes cast on each side.</p>

Before Shipp, J., This is an action brought by H. Klugh Purdy, plaintiff, against the defendant, Western Union Telegraph Co., for twenty-five hundred dollars punitive damages on account of an alleged wilful and wanton disclosure of the contents of a certain telegram sent plaintiff by the National Surety Co., with reference to its rates on the bond of certain public officers.

Before SeasE, J., Conviction on indictment for murder. The opinion states the case. Statute only provides for recharge on law applicable to case, on jury’s return into Court, without having agreed: 1 Code of Laws, S. C., 1913, 4050; 1 Heisk. (Tenn.) 202. Reasonable doubt: 37 S. E. 690; 72 Miss. 95; 16 So. 202. Propriety of additional charge: 87 S. C. 331; 74 S. C. 142; 86 S. C. 48. Reasonable doubt: 75 S. C. 481.

Before Memminger, J., Action in tort, by N. L. Bennett, clerk of court, as administrator of the estate of Lucy Gales, deceased, against the Spartanburg Railway, Gas & Electric Company. Erom an order overruling its demurrer for misjoinder of causes of action, defendant appeals. The opinion states the case. The action under Lord Campbell’s Act, Code of Laws 1912, secs. 3955 and 3956, is a different action from that at common law which survives under sec. 3963: 60 S. C. 410.

Before DÉVore, J-, Creditors5 bill by the Virginia-Carolina Chemical Company against G. Wash Hunter and others. From an order directing the sale of certain property by receivers, defendants appeal.

<p>Before Prince, J.,</p> <p>Action by McNary Cochran against the Greenville, Spartanburg & Anderson Railway for alleged trespasses committed upon plaintiff’s land after entry under a grant of easement fraudulently obtained. From a judgment on order for nonsuit, plaintiff appeals.</p> <p>Testimony sustained allegation that deed to right of way was obtained by fraud: 71 S. C. 528, 146, 150; 78 S. C. 430; 94 S. C. 312; 2 Hill L. 657; 93 S. C. 397; 67 S. C. 122.</p> <p>Deed must be set aside to allow recovery: 94 S. C. 425. Consideration for deed must have been returned before suit: 56 S. C. 508; 61 S. C. 488; 84 S. C. 44, 278; 71 S. C. 147; 131 Am. St. 346; 137 Am. St. 301, 302; 50 Am. Dec. 674, note; 74 Am. Dec. 661, note; 67 S. C. 126.</p>

Petition in the original jurisdiction, by S. G. Finley, Escp, a member of the bar, for an investigation of certain charges therein contained relative to the* professional conduct and character of C. P. Sims, Esq., also a member of the bar. Proceedings on rule to show cause, issued against C. P. Sims, respondent. Suspended.

Before Memminger, J., Action by S. V. Muckenfuss and another, copartners doing business under the firm name of the Muckenfuss Manufacturing Company and certain insurance companies, against Atlanta and Charlotte Air Line Railway Company and Southern Railway Company, on two Causes of action, one under the statute, 1 Code of Laws, 1912, sec. 3226, to recover damages for the loss of property belonging to the plaintiffs, Muckenfuss Manufacturing Compan}'-, by fire, which it is…

<p>Master and Servant. Federal Employers-’ Liability Law. Applicability.</p> <p>A railway employee, who is within the Federal Employers’ Liability Act (April 22, 1908, c. 149, 35 Stats., 65 U. S. Comp. St. Supp., 1911, p. 1322), while actually engaged in relaying rails on a line of railway is also within the act while asleep at night in a shanty car of a train on a sidetrack, placed there for the accommodation of such employees, and he may recover for injuries sustained in consequence of the shanty car being struck by another train.</p> <p>Footnote — As to the effect upon master’s liability for breach of statutory duty of fact that employee was resting at the time of injury, see note in 22 L. R. A. (N. S.) 309. And on the general question of injury to servant on master’s premises before, after, or between hours of work, see notes in 12 L. R. A. (N. S.) 853, and 23 I/. R. A. (N. S.) 954.</p>

<p>Negotiable Instruments. Innocent Holder. Direction of Verdict.</p> <p>Where the testimony of plaintiff that it is a holder for value in due course of business before maturity of a negotiable instrument, without notice of any fraud or infirmity affecting it, is undisputed, and only one inference can be drawn therefrom; verdict was properly directed in its favor.</p>

<p>Magistrates. Jurisdiction. Residence op Parties. Waiver op Objection.</p> <p>Failure of a defendant residing in one county, personally served with summons before a magistrate of an adjoining county in an-action for claim and delivery of personal property within the territorial jurisdiction of such magistrate, to appear and object to the jurisdiction of the magistrate, waives want of jurisdiction over him, and a default judgment against him in such action is valid.</p> <p>Mr. Justice Fraser dissents.</p>

<p>Electric Railroads. Injuries to Licensee on Track. "Wilful or Wanton Disregard of Duty. Contributory Negligence. Instructions.</p> <p>1. Evidence that a proper stre'et car headlight would throw light on the track 200 yards ahead of the car, and that the headlight on the car by which decedent was killed only threw a light for from 35 to 50 feet, made it a question for jury whether or not the railway company was guilty cf wilfulness or wanton failure to use a proper headlight and keep a lookout for licensees on its track.</p> <p>2. In an action for death on a street car track at night, evidence that it was the custom of motormen to eat their meals while running the car, held admissible to show wilful and wanton acts, though no such specific acts of negligence were alleged in the complaint.</p> <p>3. In an action for damages arising from death in a collision with a street car at night, the Court instructed that, if intestate came to his death through his own negligence plaintiff could not recover, and that, though defendant was negligent, and his negligence concurring with defendant’s negligence, contributed as to his injury to any extent as a proximate cause thereof, and without which it would not have happened, plaintiff could not recover, unless defendant acted wilfully or wantonly. The Court further instructed that, while it is the general duty of motormen to exercise ordinary care to avoid injuring persons on the track, it is as much the duty of such persons to exercise reasonable prudence to avoid being injured; so that, if decendent lay down on the tracks in a drunken stupor, or went to sleep thereon, and such acts amounted to negligence, and such negligence concurring with defendants negligence, “contributed to his injury to any extent as a proximate cause thereof, without which it would not have happened, then plaintiff cannot recover.” Held, that the instructions sufficiently submitted contributory negligence as a proximate cause of decendent’s death, so that further charges requested on contributory negligence were properly refused.</p> <p>Footnote — The question of the necessity of headlights on street cars is discussed in a note in 26 L. R. A. 300.</p> <p>As to whether wantonness or wilfulness, precluding defense of contributory negligence, may be predicated of the omission of a duty before the discovery of a person in peril on a railroad or street railway track, see note in 21 L. R. A. (N. S.) 427.</p> <p>4. Where decedent, when struck by a street car, was at least a licensee, so that the company owed him a duty to look out for him, if, in an action for his death the company desired a charge on intestate’s right to be on the track on the theory that he had gotten outside the public highway when struck, it should have requested such charge.</p> <p>5. In an action for decedent’s death being struck by a street car, the Court charged that, where it is a motorman’s duty to keep a lookout on the track for licensees, he cannot excuse his negligence in injuring a licensee by showing that, at the time of the injury his attention was held by another duty, for, in such cases the question still remained whether at that time the motorman was exercising due diligence in keeping a lookout ahead on the track as required. Held, that the instruction was not erroneous as a charge on the facts, in that it prevented the jury from considering whether the motorman, because of performing his duty of watching intending passengers, was not excusable in not seeing intestate sooner.</p> <p>6. The Court instructed, in an action for decedent’s death from being struck by a street car, that, while a drunken person would not be run over unless he went on a track, yet the fact that one is on the track at a public • crossing in an apparently helpless condition need not necessarily be contributory negligence, since, if that were the law, then no apparently helpless person, from drink or other cause, on a railway track could recover damages; that the law does not' prevent one in such case from recovering, even though his condition be due to his own negligence, if the jury further believe that, notwithstanding such negligence, the motorman could have avoided the injury by exercising due diligence in keeping a reasonable outlook ahead, so as to discover him in time to avoid injuring him, but failed to do so, then, if the motorman’s neglect, and not the negligence of the person injured, was the proximate cause of the injury, the company would be liable. Held, that the instruction was not erroneous as a charge on the facts or otherwise.</p>

<p>Judgment. Motion to Vacate. Fraud.</p> <p>1. Denial of motion to set aside a default judgment under Code Civ. Proc., sec. 225, on the ground of mistake or excusable neglect, will not be disturbed, where defendant’s claims that the default was due to his bad health and deficient memory, and that he had a good defense against charges made, are not sustained.</p> <p>2. Where defendant gave checks on a bank for cotton purchased, which he met by depositing a draft drawn against the cotton, though he had already drawn against the cotton, with bill of lading attached, the whole transaction showed fraud, though he claimed to have overlooked the fact that he had already drawn against it.</p> <p>3. It is not a defense to an action for fraud and deceit against a trained man of business for obtaining a credit of $500.00 on draft attached to a bill of lading for cotton worth less than $300.00, that he thought it was worth $500.00.</p> <p>Footnote — On the question whether statements made without knowledge of falsity constitute ground of action for fraud, see note in 18 i. R. A. (N. S.) 379.</p>

In the original jurisdiction: Petitions for mandamus by John G. Richards and others, Railroad Commissioners, in three cases. No 8788, against the Southern Railway Company and the City of Columbia, to require them to submit plans to improve and safeguard the crossing of Elmwood avenue, over the Southern Railway, in the city of Columbia.

Before Gary, Ernest, J., Action by Joseph J. Dunlap and others against Mittie R. Robinson and others for recovery of possession of real estate. From judgment on verdict for defendants, the plaintiffs appeal. The plaintiffs’ exceptions were as follows: 1. That his Honor erred in charging the jury as follows: “The defendant, Mittie Rebecca, says it is mine, because I have two wills of the daughters of R. D. Dunlap'.

<p>Appeal. Case. Nuisance. Wilfulness. Evidence. Contrujutouy Negligence.</p> <p>1. Case on appeal should not include testimony irrelevant to questions raised by exceptions.'</p> <p>2. A charge, that unless the jury found that a pile of shingles and coal, alleged to be a nuisance endangering travel on a public way, was placed or permitted to remain upon defendant’s premises, and under its control, it could not obtain as an element of negligence against it, held, not liable to construction that the defendant would be liable if such pile were upon its premises, without reference to negligence and proximate cause; as the jury was also instructed that the defendant would only be liable for damages occasioned by the pile of shingles and coal, if they were negligently placed or left at the locus, and were a proximate cause of the injury.</p> <p>3. Wilfulness is a conscious realization of wrongdoing. Charge not objectionable as justifying the belief by the jury that the same evidence warranted a finding of both negligence and wilfulness.</p> <p>4. Charge on a hypothetical statement of facts not error,' where the jury were instructed that the law so given was not applicable unless they found the facts to exist.</p> <p>5. A railroad company negligently leaving a car loaded with wild animals, in close proximity to a public highway where it would be apt to frighten animals passing- upon the highway is liable for a nuisance at common law. Code of Laws, sec. 1947, does not apply unless the notice to move the car required by the statute has been given.</p> <p>6. Whether a way exists, and whether or not it is public, are questions of fact for a jury under proper instructions.</p> <p>7. An irrelevant charge, being harmless, cannot be the basis of an exception.</p> <p>8. Testimony that other horses were frightened by the same object under like circumstances, as alleged in the testimony with reference to the horse in question, was relevant to the issue, was the object one apt to frighten ordinary horses.</p> <p>9. It is competent on cross-examination of a medical expert to inquire what symptoms following a blow upon the head would, or would not, indicate a fracture of the skull.</p> <p>10.Held, error to instruct jury that if plaintiff was negligent, but his negligence arose by reason of the defendant negligently placing him in an extremity of danger, then plaintiff’s negligence, under such circumstances, would not be contributory negligence. The jury should have inquired whether there was an extremity of danger, and whether plaintiff acted thereunder as a reasonably prudent man would have acted in the same exigency.</p>

<p>Before Shipp, J.,</p> <p>Action by Annie Turner against F. W. Poe Mfg. Co., for personal injuries received while in- defendant’s employment. From judgment on- a verdict for plaintiff, defendant appeals.</p> <p>No proof of master's negligence: 20 A. & E. Ene. (2d ed.) 77, 142-143; 72 S. C. 402; 39 S. C. 39. Servant was awa/re of danger: 55 S. C. 483; 72 S. C. 237. Plaintiff assumed risk: 79 S. C. 502; 70 S. C. 242; 84 S. C. 283; 89 S. C. 502; 86 S. C. 69; Eabatt Master and Servant, sec. 1249.</p> <p>Sufficiency of testimony for jury: 50 S. C. 556. Servant not charged with duty to discover defects: 86 S. C. 441; 26 Cyc. 1090. Inspection master’s duty: 86 S. C. 411; 72 S. C. 412; 71 S. C. 81; 40 S. C. 109; 66 S. C. 485, 486; 52 S. C. 443; 38 S. C. 208; 37 S. C. 604; 35 S. C. 407; 34 S. C. 215; 18 S. C. 281, 282, 262; 15 S. C. 443. Servant not required to inspect: 38 S. C. 206. Attempt to repair, cast burden on master to show care: 95 S. C. 244; 18 S. C. 275; 34 S. C. 211; 13 S. E. 419; 35 S. C. 405; 14 S. E. 808; 15 S. C. 454; 86 S. C. 435.</p>

Before Spain, J., Action by W. S. Camion against Elizabeth L. Baker and others, to recover possession of an undivided interest in real property, and partition thereof. Issue of title was submitted to' a jury, and resulted in a verdict for the defendant. From the judgment entered thereon plaintiff appeals. The facts are stated in the opinion of the Court. Devisees under will of Andrew Dunbar took fees conditional: Ambiguous clauses cannot control former express gift: 120 Am.

<p>Actions por Recovery op Real Property. Practice. Life Estates. Trial. Instructions.</p> <p>1. The Supreme Court, on appeal from an order of nonsuit at the close of jilaintiff’s case, had no jurisdiction to determine the facts so as to conclude the Court on a new trial.</p> <p>2. Whether the plaintiff, in an action for damages for unlawful entry-on land, and to recover possession, ever had possession of the land was a question for the jury to determine. '</p> <p>3. The plaintiff, in an action for unlawful entry on land, and for possession, wherein a general denial was interposed, was put upon proof of his possession, and, if he failed to prove that he ever had possession, the possession of the defendant required him to show title in order to recover.</p> <p>4. An exception to an instruction, in an action for unlawful entry on land, and for possession, that plaintiff introduced the same proof as upon a former trial, could not be sustained on the ground that plaintiff did not introduce a tax deed that he had introduced on the former trial, where such deed was introduced by the defendant, and was before the jury.</p> <p>5. The defendant, in an action for unlawful entry on land, and for possession, who interposed a general denial, was entitled to rely on the defense that plaintiff failed to prove that he ever had possession, and that the tax deed under which he claimed was void, and did not cover the land in dispute.</p> <p>6. The failure of the Court to construe deeds in the chain of title of the plaintiff, in an action for unlawful entry on land, and for possession, was not error, where it did not appear that such construction was necessary, and it was not requested.</p> <p>7. Whether a sheriff’s deed, under which the plaintiff, in an action for unlawful entry on land, and for possession, claimed title, covered the land in dispute was for the jury, where there was a question whether the land was covered by such deed.</p> <p>8. That the deed to the grantor of the plaintiff, in an action for unlawful entry, and for possession, may have conveyed only a life estate did not necessarily require a judgment for defendant on plaintiff’s death and the substitution of his heirs, where there was no evidence of the death of plaintiff’s grantor, since plaintiff’s estate would last during his grantor’s life.</p> <p>9. The recital in a deed from the Sinking Fund Commission to one who was its authorized agent of a consideration of “one dollar and other valuable considerations” was not sufficient to show that the transfer was fraudulent, where the value of the other considerations did not appear.</p> <p>10. Possession is necessary to maintain an action of trespass.</p> <p>11. Possession is necessary to complete a tax title.</p>

<p>Before Rice, J.,</p> <p>Action by Oscar Watkins against Atlantic Coast Riñe Railroad Company. From a judgment for plaintiff, defendant appeals.</p> <p>Declarations of alleged agent inadmissible: 39 S. C. 444, 535; 72 S. C. 251; 46 S. C. 81; 57 S. C. 142; 49 S. C. 356. Judgment of another State: 63 S. C. 542. Punitive damages: 147 U. S. "101; 37 R. ed. 97.</p> <p>Testimony received without objection: 51 S. C. 282; 53 S. C. 360; 67 S. C. 180. Record of conviction in criminal Courts of another State irrelevant: 3 Strob. 546; 93 S. C. 292. Punitive damages: 37 R. ed. (U. S'.) 97; 71 S. C. 444; 88 S. C. 421; 89 S. C. 432; 57 R. ed. (U. S.) 1545; 48 R. ed. (U. S.) 268.</p>

Before Shipp, J., Action by J. H. Teddars against Southern Railway Company. From a judgment on verdict for plaintiff, defendant appeals.

<p>Insurance. Life Policy. Defenses. Evidence.</p> <p>1. In an action on a life policy, evidence of decedent’s attending physician that within a year prior to the date of the policy he had treated her for a rundown condition of her system, and suspected lung trouble, but never made any tuberculin test, and did not know</p> <p>„ whether she had tuberculosis or not, was insufficient to sustain a defense under a provision of the policy that no obligation was incurred unless on the date of the policy insured was in sound health, in that at that time she was afflicted with tuberculosis.</p> <p>2. Where, in an action on a life policy, defendant pleaded unsound health of insured at the time the policy was issued by reason of tuberculosis, and for that reason the policy was void under a provision that no obligation was assumed thereunder unless insured was in good health, at the time the policy was delivered, defendant was confined to the disability pleaded, and could not claim a forfeiture for other reasons.</p> <p>Footnote — The question of the effect of stipulation in application or policy of life insurance that it shall not become binding- unless delivered to assured while in good health is discussed in notes in 17 L. It. A. (N. S.) 1144, and 43 L. R. A. (N. S.) 725.</p>

Before Gage;, J., Action by Alonzo1 Davis against A. S. Littlefield and R. S. Littlefield. From a judgment for the plaintiff against A. S. Littlefield, he appeals. The case was stated in appellant’s brief, as follows: “Mr. A. S. Littlefield, the defendant-appellant herein, who' is a resident of Chicago1, rented a house in Aiken for the winter season of 1911-1913, and established his family there.

<p>Before Gage, J.,</p> <p>Action by J. D. Haselden against W. N. Hamer. From a judgment in favor of the plaintiff, defendant appeals.</p> <p>Changing ground for relief: 24 S. C. 165, 172. Rights of pledgor: 22 A. & E. Enc. of D. (2d ed.) 876-879; 16 Am. St. Rep. 679; 2 Mills Const. R. 241; 1 S. C. 445. Rights of pledgee: 22 A. & E. Enc. of L. (2d ed.) 885, 894; 145 U. S. 205; 16 Am. St. Rep. 667, 670; 3 L. R. A. (N. S.) 1199; 7 Mete. 407; 87 Ala. 645. Character of action: 43 S. C. 192. Amendment changing character of action: 81 S. C. 574. Effect of admissions in pleadings: 16 S- C. 585. Allegata and probata: Pomeroy Rem. & Rem. Rights, sec. 84. Power coupled with interest: 11 S. C. 520; 22 Ency. 906, 907. Trover and conversion: 72 S. C. 462, 463.</p> <p>Readiness to perform contract: Thomp. on Corp., sec. 2646; 4 Johns. Ch. 490; 8 Am. Dec. 606; 33 Cal. 394; 10 Am. Rep. 290; 13 N. Y. 626; 207 U'. S. 278; 229 U. S. 23; 19 N. Y. 170. Rights of pledgee: ll S. C. 486; 70 S. C. 432; 25 S- E. 504; 48 S. E. 191; 88 N. W. 552; 39 Atl. 437; 114 N. Y. S. 1000; 86 N. E. 777; 93 N. E. 1123. Conversion: 102 Am. St. Rep. 30; 54 Atl. 46.</p> <p>Prayer for relief no part'of cause of action: 34 S. C. 273; 13 S. C. 439; 23 S. C. 282; 34 S. C. 289; 16 S. C. 374; 70 S. C. 107. Conversion: 45 S. C. 388; 2 StrobJ Eq. 370. Tender unnecessary: 89 S. C. 426. . Amendment to conform to evidence: 86 S. C. 98; 68 S. C. 250; 53 S. C. 315; 51 S. C- 412. Relief appropriate: 16 S. C. 374; 48 S." C. 175; 69 S. C. 256. Pledge: 31 Cyc. 787, 789. Contract against public policy: 31 Cyc. 863; 49 Am. Dec. 727; Story Bailments 345; 11 Peters 351. Exercise of power to sell: 1 Code of Daws, sec. 4105; 31 Cyc. 858; 2 Cook Corp. 476, 477, 479. Waiver of right to redeem: 31 Cyc. 858; 79 Fed. 522. Pledgees duty: 31 Cyc. 860.-Weakness of party: 89 S. C. 352. Delivery of deed: 6 S. C. 124; 2 Strob. Eq. 70. Damages: 72 S. C. 458.</p>

Before Shipp, J., Action by the Elder Harrison Company against Theodore D. Jervey, administrator of C. H. Jervey, deceased. From a judgment for plaintiff, defendant appeals. : The matter arises on demurrer to the allegations: 37 S. C. 107-110; 16 S. C. 510; 31 S. E. 510; 35 S. E. 759-761; 13 S. E. 197; 69 S. E. 393; 11 S. E. 971; 70 S. E. 1038. In the accounting the whole case must be taken together, and upon that plaintiff cannot recover: 6 Term Rep. 105-108; 19 U. S. Sup.

Before Gage, J., Action by W. E. Rawls against the American Central Insurance Company. Judgment for plaintiff, defendant appeals. This is the second appeal in this action, the first appeal being reported in 94 S. C. 299, 77 S. E. 1013, 45 E. R. A. (N. S.) 463. Exceptions. Defendant’s exceptions are: “1.

Before Spain, J., Action by Roulie V. Johnson against Road and Highway Commission for Marion county. From an order dissolving a temporary injunction, plaintiff appeals. The statute (26 Stats. 945) is to be strictly construed: 26 Am. &Eng. Ene. R. 665; 73 S. C. 89; 1 Bay 356; 139 111. 46; 32 Am. St. Rep. 179, and note. How damages are to be fixed or assessed: 1 Code of Raws 1933. Relocation of road: 37 Cyc. 175; 189 Mass. 308; 19 Am. & Eng. 515.

<p>Dismissal for Want of Prosecution. Laches.</p> <p>An action to recover certain real estate and rents and profits against ' certain defendants, all of whom but one were minors, was instituted . March 4, 1889. No guardian ad litem was appointed, but a demurrer on the ground that two causes of action were improperly united was sustained November 30, 1891, and plaintiff's were given the right to elect on which cause of action they would go to trial. From 1892, when notice of election was served, until 1912, when a guardian ad litem for certain minor plaintiffs was appointed, nothing was done. One of the original plaintiffs died in 1894, after having promised one of defendants that he would abandon the suit. The cause was first docketed in April, 1889, and carried forward from term to term until the October, 1897, term, when it was “stricken off with leave to restore.” It did not again appear on the calendar until the April, 1900, term. In April, 1889, a referee was appointed, and in January, 1913, the heirs at law of the deceased plaintiff asked leave to amend the complaint and to serve a supplemental complaint, whereupon defendants moved to dismiss for want of prosecution. Held, that plaintiffs were guilty of inexcusable laches, entitling defendants to a dismissal.</p>

Before Bowman, J., Action by F. S. Cannon against the Atlantic Coast Line Railroad Company. From an order sustaining- a demurrer to the complaint, plaintiff appeals. Affirmed, with leave to .plaintiff to apply for permission to amend his complaint.

<p>Appeal and Error. Libel and Slander. Charge. Evidence.</p> <p>1. In absence of a showing by the record- that defendant, in an action for slander, requested a charge that plaintiff could only recover actual damages for constructive malice, but may recover punitive damages for actual malice, error in not giving such a charge cannoi be considered on appeal.</p> <p>2. Damages may be awarded in a slander action only for words spoken at the time alleged in the complaint.</p> <p>3. Spoken words charging a crime are actionable.</p> <p>4. An instruction that, in an action for slander, statements made by defendant, derogatory to plaintiff’s character, at other times than those alleged in the complaint may be shown on the question of malice, and “shows express malice,” is objectionable, as being on the facts.</p> <p>6. Statements by defendant derogatory to plaintiff’s character, made at other times than those alleged in the complaint, are competent evidence of express malice.</p> <p>6. Error in an instruction, as being on the facts, that in slander statements by defendant derogatory to plaintiff’s character, made at other times than those alleged, are competent on the question of malice, “and shows express malice,” held; an inadvert statement which could not have misled the jury.</p>

<p>Judicial Sales. Failure to Comely With Bid.</p> <p>A master in chancery in selling land under a decree only allowed the purchaser three hours in which to comply with the terms of sale, and, upon noncompliance within that time, resold the property. Held, that the purchaser was not allowed a reasonable time to examine the title, and hence the resale was a nullity.</p>

Before Spain, J., Submission without action of controversy between the Midland Timber Company and J. F. Prettyman & Sons and another. From a judgment in favor of plaintiff, defendants appeal.

Before Spain, J., Action for partition of lands brought by Carrie Ayer and others against W. F. Hughes and others. From judgment, plaintiffs and a part of the defendants appeal. 44 S. C. 378; 27 A. & E. Enc. of L. (2d ed.) 434; 1 McC. Ch. 451-452; 53 S. C. 24; 15 S. C. 581. Answer of infant defendants: 27 S. C. 365; 61 S. C. 5,72. 27 S. C. . 272; 13 S. 'C. 513; 61 S. C. 538; 1 A. & E. Enc. of L. (2d ed.) 371, 337, 339.

Before Gagr, J., Action by John D. Dinkins, as executor of A. H. Dinkins, deceased, against W. J. Simons, as committee of Robert J. Palmer, a lunatic, and others. Prom a judgment for plaintiff, defendants appeal. Dinkins never acquired -equitable title: 32 S. C. 57. The contract lacked the essentials of a mortgage: 78 S. C. 181; 31 S. C. 280-281; 55-S. C. 70-71; 61 S. C. 579; 82 S. C. 558. Specific performance not of right: 53 S. C. 572; 70 S. C. 351; 79 S. C. 143.

Before M. L. Bonham, special Judge, Action by Charles E. Gill and others against Charles F. Ruggles. Judgment for plaintiffs, defendant appeals. The material paragraphs of the first cause of action were as follows: “Third.

Before Shipp, J., Action by the Carolina National Bank of Columbia, S. C., against the city of Greenville and others. From a judgment for plaintiff, certain of the defendants appeal.

Petition for certiorari in the original jurisdiction. Application by G. W. Tucker for a writ of certiorari against Cole.-L. Blease and others, constituting the board of education in and for the State of South Carolina, to review the dismissal of Herbert Kirby and others from the Dalcho public school. The petition was as follows: “The petition of the undersigned, G. W. Tucker, respectfully shows to- the Court: I. That the Honorable Cole.

Before Gage, J., Action for the recovery of an undivided interest in lands, and the partition of the same, by Hercules Maples against Kate Spencer. From an order dismissing complaint, plaintiff appeals. Nonsuit improper in equitable action: 88 S. C. 183; 54 S. C. 115; 23 S. C. 388; 25 S. C. 72; 28 S. C. 530; 31 S. C. 262; 41 S. C. 195; 52 S. C. 236; 53 S. C. 367; 71 S. C. 280; 76 S. C. 167; 36 S. C. 559.

Before Shipp, J., Action by Sarah C. Eleazer and husband against Frank W. Shealy, clerk of Court of Common Pleas and General Sessions for Lexington county and special referee. From a judgment for defendant, plaintiffs appeal.

Before Bowmaín, J., Action by W. F. Dobey and James C. Dobey, copartners, under the firm name of W. F. Dobey & Son, against Airs. P. B. Watson, on a building contract.

Before Gage, J., Action by the Southern States Phosphate Company against John T. Arthurs. From a judgment for plaintiff, defendant appeals. The facts are stated in the opinion.

Before Shipp, J., Action by Beulah Y. Banks against W. 'H. Frith. Judgment for defendant and plaintiff appeals. The issues are stated in the opinion of the Court, as follows : In order to understand this case, it is well to set out the complaint and answer. The complaint is as follows: “The plaintiff above named, by her attorney, Wm.

<p>Receivers. Appointment.</p> <p>Where defendant diverted collections made upon securities belonging jointly to himself and plaintiff and assigned as collateral, plaintiff’s right to have a receiver appointed is not lost because defendant subsequently paid the debt ■ from funds collected from other sources, for a diversion of trust property cannot be sanctioned although it is expected that other funds will supply its place.</p>

<p>Appeal and Error. Pleadinq. Practice. Discretionary Order. Fire Insurance. Waiver.</p> <p>1. Under Code Civil Procedure 1912, section 203, providing that, where , an answer contains new matter constituting a defense by way of avoidance, the Court may, in its discretion, on defendant’s motion, require a reply thereto, the matter of requiring- a reply is within the trial Court’s discretion, which will not be interfered with, in the absence of prejudicial abuse.</p> <p>2. An agent with general authority, who is authorized to make contracts of insurance without consulting the company, may waive any conditions of the policy, and his knowledge of material facts is the knowledge of the company.</p> <p>Footnote — The question whether the failure of the insurer to speak or act after notice of breach of policy constitutes a waiver thereof is treated in a note in 25 L. R. A. (N. S.) 1.</p> <p>As to waiver of condition as to location of' property, see note in 26 L. R. A. 242.</p> <p>3. The insurance company, upon learning that insured had violated the terms of his policy by removing the property from the place in which it was insured, should have offered to return the premium and cancel the policy, and its failure to do so is evidence tending to show a waiver of that condition.</p> <p>4. Knowledge of the fire insurance agent within the scope of his agency that an insured had removed the insured property, contrary to the terms of the policy, was imputable to the principal.</p>

Before Frank 'B. Gary, J., Appeal from order of Circuit Court made on appeal from a magistrate’s Court, in action brought by G. W. Eaker against W. M.. Floyd. The Circuit Court granted a new trial before another magistrate. .

Before Bowman, J., Actions by E. V. Campbell and Jones J. Rogers against Greenville, Spartanburg & Anderson Railway Company, to recover damages to a horse, the property of Rogers, and buggy, the property of Campbell, in a collision with a car being operated by defendant at a public crossing. From a judgment for the plaintiff in each case, defendant appeals. The statute, i Code of Lazos 1912, sec. 2123, does not apply t'o railroads operated by electricity.

<p>Telegraph Companies. Nondelivery op Message. Punitive Damages. Charge. Verdict.</p> <p>1. A verdict which finds for plaintiff for punitive damages only contains an implied finding of nominal actual damages, and is sufficient; there being evidence to sustain a finding for at least nominal damages.</p> <p>2. The Court instructed, in an action for damages for nondelivery of a telegram, that the form of the verdict should be, either that the jury find for plaintiff for- so many dollars actual damages, which ■ includes mental anguish, etc., and so many dollars punitive damages, if they also found punitive damages, or that the jury found for defendants, and that, if the jury found both actual and punitive damages, they should keep them separated. Held, that the instruction waá to the effect that the verdict should indicate the kind of damages to which plaintiff was entitled, arid was proper.</p> <p>3. A verdict for punitive damages only is improper, if there was no evidence tending to show at least nominal actual damage.</p> <p>4. The fact that the verdict did not contain an express finding for plaintiff for actual damages, but ^merely awarded a, certain sum as “punitive damages,” was a mere irregularity, where there was evidence of actual damage, which was waived by appellant’s failure to object thereto until the jury were separated, since he should have objected to the form of the verdict as soon as it was read.</p> <p>Footnote — As to the damages recoverable in action by addressee of telegram for delay in delivery, see note in 30 L. R. A. (N. S.) 1133.</p>

Before Gage, J., Action by theGermofert Manufacturing Company against S. F. Castles to- recover the purchase money for fertilizers sold. From an order granting a motion to- strike out a counterclaim in answer as sham, defendant appeals. The second, third, fourth and fifth paragraphs- of the counterclaim struck out alleged: “2.

<p>PEEADTirGS. Sl-IAM.</p> <p>Defense of fraud in action for purchase money of fertilizers sold, held to be improperly stricken out as sham under Germofert Fertilizer Oo. v. Castles, supra.</p>

<p>Pleadings. Sham.</p> <p>Counterclaim in action for purchase money of fertilizers sold, held to be improperly stricken out as sham under Germofert Fert. Co. v. Castles, swpra.</p>

Before Prince, J., Action by O. S. Kendrick against M. A. Moseley. From a judgment for plaintiff, defendant appeals. The facts are stated in the opinion of the Court. Mortgagee in possession: 63 S. C. 300; 67 S. C. 433; 163 U. S. 416; 37 S. C. 563; 30 S. C. 17; 3 Pom. Eq. Juris. 1189; 53 N. Y. 335; 86 N. E. 463; 37 S. C. 563; 30 S. C. 17; 15 Atl. 355. Chattel interest subordinate to title to land: 34 Am. Dec. 105. Title to land in mortgagee: 62 S. C. 300; 18 So. 105; 63 Am.

<p>Telegraphs and Telephones. Delay in Delivery op Messages. Pleading. Damages.</p> <p>1. A party to a contract, to recover special damages for a breach thereof, must allege that the adverse party, at the time of making the contract, knew the peculiar circumstances which would give rise to special damages in case of a breach.</p> <p>2. The Court, in determining the sufficiency of the complaint, in an action against a telegraph company for delay in the delivery' of a message, causing loss of compensation for professional services, as stating a cause of action for special damages, may consider the message set out in the complaint as read in the light of the attendant circumstances known to the company, as alleged in the complaint..</p> <p>3. A demurrer to a complaint admits every fact alleged in the complaint and every fact which may be reasonably inferred from those directly alleged.</p> <p>4. A complaint, in an action against a telephone company for delay in delivering a message asking plaintiff to go to a designated place and represent the sender before a body, which alleges that plaintiff was an attorney, and was known to the agents of the company, and that the company knew that the sender’s purpose was to engage the professional services of plaintiff, and that, because of delay in the delivery of the message, plaintiff could not render the services," and was deprived of a reasonable compensation therefor, states a cause of action, as against a demurrer, for special damages for loss of compensation.</p> <p>5. A telegraph company, when sued for delay in the delivery of a message, may not complain of the defect in the complaint whereby evidence to prove notice that special damages would result from delay in delivery is set out instead of the allegation of notice.</p> <p>Footnote — On the question of loss of opportunity to respond to a call for professional services as a ground for action against telegraph company, see note in 14 L. R. A. (N. S.) S33.</p>

Before DeVore, J., Action by the Philadelphia Life Insurance Company of Philadelphia, Pa., against Quincy L. Arnold and wife, for cancellation of certain policies of life insurance. From a decree for plaintiff, defendants appeal. Mr. Cochran cites: The incontestable clause is in the nature of a statute of limitations: 25 Cyc. 873, 881; 19 Am. & Eng. Enc. of' Law (2d ed.) 79, et seq-; 101 Tenn. 22; 70 Am.

Before Frank B. Gary, J., Action by Darby D. Sanders, as administrator, against Southern Railway — Carolina Division. From judgment for plaintiff, defendant appeals. As to statutory cause of action: 1 Code of Daws 3133, 3139; 41 S. C. 86; 91 S. C. 546; 41 S. C. 1. No evidence of statutory traveled place: 67 S. C. 499; Jones, Easements, sec. 381; 85 S. C. 443, 444. Harmless error: 93 S. C. 395. Common law cause of action: 61 S. C. 556. Licensee: 67 S. C. 499.

Before- Sease, J., Albert Newman and Elmore Mobley were indicted for an assault and battery with intent to- kill, and being convicted of an assault and battery of a high and aggravated nature, appeal on the following exceptions: “That his Honor, the presiding Judg'e, erred, it is respectfully submitted, in charging the jury as follows : “(1) T charge you, as a matter of law, where two persons commit an offense, one standing- by and seeing- the other, aiding and abetting him,…

Before Ernest Gary, J., Action by Jones Bros, against J. R. Strickland and others for claim and delivery oí personal property. From an order denying the motion of the defendants, W. H. Yarn and Bank oí Smoaks, to change the venue to Colleton county, they appeal. Answering no merits does not waive right to make motion: 69 S. E. 603; 68 S. E. 631. Jurisdiction at chambers: 52 S. E. 646.

Before Bowman, J., Action by S. A. Turner and another against John Pool and others for recovery of an undivided interest in lands, and partition of the same. From an order sustaining a demurrer to the answer, the defendant, Pearson, appeals. The former cites: Plea of statute of limitations can not be raised by demurrer: 22 S. C. 584; 16 S. C. 379; 80 S. C. 224; 70 S. C. 315; ‘Code Civil Proc. 94, 118, 119.

<p>Criaiinai. Law. Abpeax. and Error. Labor Contract. Objections to Warrant. ,</p> <p>1. The general rule that questions which were not raised in the trial Court will not be considered on appeal will not be applied in a' criminal case tried before a magistrate, where the warrant charges no offense against the law, and there is a total failure of proof of any crime, not merely as to some immaterial particular or particulars, but in respect to matters which go to the foundation of the offense alleged, or attempted to be alleged, and proved.</p> <p>2. Under Criminal Code 1912, sec. 492, providing that any person who shall contract with another to. render personal services, and shall thereafter fraudulently or with malicious intent fail or' refuse to render such service, shall be guilty of a misdemeanor-, section 494, making the breach prima facie evidence that the violation was fraudulent and malicious, and section 497, providing that the contract may be verbal or in writing, and, if in writing, it shall be witnessed by one or more disinterested persons, and, if verbal, by at least two disinterested witnesses, not related by blood or marriage within the sixth degree to either party, where the' warrant does not allege and the proof does not show whether the contract was verbal or in writing, or whether it was witnessed, a conviction cannot be predicated thereon.</p> <p>3. Criminal Code 1912, sec. 84, providing that objections to any indictment for defects apparent on the face thereof must be taken by demurrer or motion to quash before the jury is sworn, does not apply to magistrate’s Courts.</p>

Before Spain, J., Action by Anna R. Anderson against the Citizens Bank and another. From judgment for defendants, plaintiff appeals. Porm of decree: 4 S. C. 292; 16 S. E. 140; Code Civil Proc. 327; 18 Mich. 75. Assignee has no higher rights than assignor: 38 S. C. 138; 17 S. E. 465; 26 S. C. 506; 2 S. E. 501; Code Civil Proc. 161; 95 Fed. 55; 53 N. E. 868; 65 S. E. 81; 56 S. E. 676; 76 S. E. 163; 47 S. E. 71; 68 S. C. 246.

<p>Before Rice, J.,</p> <p>Action by A. G. Middleton against the Denmark Ice & Fuel Co. From an order modifying judgment'rendered by preceding Judge during preceding term of Court, plaintiff appeals.</p> <p>Order of preceding Judge resjudicata: 23 Cyc. 1215 and 1233; 17 S. C. 35; 34 S. C- 463; 45 S. C. 321; 51 S. C. 25; 52 S. C. 166; 50 S. C. 68; 55 S. C. 507; 63 S. C. 406; 84 S. C. 193; 87 S. C. 127; 21 S. C. 89. Order of preceding Judge could be reviezved only on appeal: 47 S. C. 525; 51 S. C. 1; 5 S. C. 348; 49 S. C. 156; 54 S. C. 4. Or on motion in Court to correct judgment: 34 S. C. 452; 51 S. C. 333; 35 S. C. 612; 46 S. C. 474. Circuit Judge at chambers cannot correct judgment of a Court: 1 Code of Laws 3833; 47 S. C. 31; 3 S. C. 427; 44 S. C. 383; 52 S. C. 305; 85 S. C. 530: 30 S. C. 614; 14 S. C. 517; 5 S. C. 348; 54 S. C. 400; Coley v. Coley, Mss. 84 S. C. 383, explained.</p>

Before Sease, J., Action- by Henry S. Corley against American Baptist Home Mission Society. From a judgment for plaintiff, defendant appeals. The facts are stated in- the opinion.

<p>Carriers and Passengers. Accommodations on Trains. Personal Injury. Proximate Cause. Contributory Negligence.</p> <p>1. A carriei under its contract of carriage is bound to furnish passengers with seats, and if the failure to do so is under circumstances showing that the carrier had every reason to know that the accommodations were insufficient, and due to wilful and reckless indifference to the rights of the passengers, a recovery of jumitive damages can be had.</p> <p>2. Where a passenger, while standing upon the bottom step of a passenger coach and swinging out beyond the line of the cars and looking backwards through curiosity, was injured by being struck by a car standing upon a sidetrack, the proximate cause of the injury was not any negligence of the carrier in failing to furnish seats, but his own contributory negligence.</p> <p>3. Where a boy 19,years old left the inside of a passenger coach, where he had standing room, and went out on the platform, and was injured while swinging out from the lower step by being struck by a car standing on a sidetrack, he was guilty of contributory negligence precluding recovery.</p> <p>4i. Though the negligence of a carrier in failing t.o provide seats inside a passenger car compelled a passenger to stand upon the platform, yet where the passenger placed himself in a position of obviously greater danger by going tp- the lower step, swinging out and looking backwards, and was struck by a car standing upon a sidetrack, he could not recover.</p> <p>Foothote — As to the right of a passenger to a seat, see note in 22 L. R. A. 259.</p> <p>Upon the liability to a passenger riding- on platform of railroad car with knowledge of carrier, see note in 1 U. R. A. (X. S.) 1145.</p> <p>On the question of riding on platform of railroad car as negligence, see note in 29 I,. R. A. (X. S.) 325.</p>

Before Prince, ]., Action by the Plartzog-Hagood Live Stock and Vehicle Company against H. W. Wilson to recover purchase money for mule sold. From judgment for plaintiff, defendant appeals. Code Civil Proc. 298. Meaning of purchase money: 15 S. C. 41, 70; 59 S. C. 70; 7 Words and Phrases 5857.

Before Shipp, J., Action by George H. Taylor against Mrs. Lila O. King and others to foreclose a mortgage. From a judgment for plaintiff for an insufficient amount, he appeals. No evidence to support findings of fact: 51 S. C. 80S; 55 S. C. 198; 67 S. C. 541. Sufficiency of tender: 71 S. C. 250. Effect of tender: Code, sec. 3461. Attorney's fees: 71 S. C. 258; 50 S. C. 303; 84 S. C. 458. '

Before DeVore, J., Action by Henry J. Wreden, by his guardian ad litem, Minnie Wreden, against the Marjenhoff Company. From a judgment for plaintiff, and an order denying motion for new trial, defendant appeals. Servant undertaking to do his work in an obviously dangerous way cannot recover: 61 S. C. 489; 81 S. C. 530; 83 S. C. 543; 84 S. C. 364; 85 S. C. 363; 89 S. C. ’ 503. Servant’s injury due to his failure to use appliances furnished by master: 72 S. C. 97; 30 Am. & Eng.

<p>Certiorari. Elections. Illegal Votes.</p> <p>1. On certiorari, the Supreme Court will not review findings of fact of an inferior body or Court, unless they are wholly unsupported by evidence.</p> <p>2. Where, in an election to determine the question of the sale of intoxicants, enough illegal votes were'cast to affect its validity, the election is void if the irregularities were such as to leave it doubtful whether the polls could be purged of them.</p>