Volume 98 — South Carolina Reports

<p>Before SrasR, J., Union, September, 1913.</p> <p>Action by the Union Buffalo Mills Company against Alex. Thesmar, doing business under the firm name of Alexander Thesmar & Co. From an order refusing to1 set aside an attachment, defendant appeals.</p> <p>cite: Defendant may seek to have attachment set aside, for benefit of the bank: 93 S. C. 41; -which owns the funds attached: 89 Ga. 108; 14 S. E. 891; 91 Ga. 307; 18 S. E. 188; 93 Ga. 484; 21 S. E. 50; 122 Ga. 67; 49 S. E. 816; 112 Ga. 814; 38 S. E. 105; 87 Ga. 435; 13 S. E. 586; 136 Ga. 372; 71 S. E. 660; 55 N. Y. Supp. 561; 102 N. W. 978; 139 Mich. 392; 70 L. R. A. 615; 30 W. Va. 518; 8 L. R. A. 101; 93 S. C. 30, 41. Intervention by the bank does not prevent defendant from making this motion: 72 S. C. 450; 93 S. C. 30; 53 S. C. 110. Affidavit insufficient: 93 S. C. 105, 106.</p> <p>cite: Cases distinguished: 72 S. C. 450; 93 S. C. 30; 53 S. C. 110; 30 S. E. 830. Ownership of draft: 136 Ga. 372; 71 S. E. 660; 72 S. C. 462.</p>

Before Spain, J., Hampton, February, 1913. Action by Planters Oil Company against W. F. Lightsey. From order granting a new trial, plaintiff appeals. The facts are stated in the opinion. cites: Cash sale., contemplated: Cent. Dig. Sales, par. 230; Decennial Digest Sales 82 (2) ; 34 N. J. D. 408. Delivery to carrier was delivery to vendee: Cent. Digest Sales 377; Dec. Dig. Sales 161; 42 Ala. 199; 64 Atl. 634; 62 L. R. A. 795; 57 Ga. 50.

<p>Corporations. Railroads. Venue.</p> <p>A foreign corporation owning and operating a line of railroad in this State is a resident of a county in which such railroad is situate, and in which it maintains offices and agents for the transaction of such business; and may, under Code Civil Procedure, sec. 174, be sued in such county jointly with a resident of another county of the State, and it was error to transfer the case to the county where the other defendant resided.</p>

Before DeVore, J., Marion, August, 1912. Action by O. G. Minshew against the Atlantic Coast Lum-ber Corporation. Held: ‘That the question of reason-, able- time is determined by all the circumstances of the case —by placing the Court and jury in the same position as the contracting parties were at the time they made the contract •—that is, by placing- before them all the circumstances known to both parties at the time.’ The above is the law which…

<p>Eleemosynary Corporations, Charities. Liability for Negligence of Employees.</p> <p>An eleemosynary corporation conducting- a hospital for the care of the sick, some of whom are cared for freely, and others of whom pay fees for such care, more or less in accordance with their circumstances; all funds so received being- devoted, along with gifts and bequests, to the maintenance, support, improvement and equipment of the hospital, is. a public charity; and is not responsible to a patient for injuries resulting from the negligence of its servants selected with due care.</p>

Before SeaisE, J., Winnsboro', September, 1912. Action by Hattie E. Bennett, as administratrix of the estate of Luther W. Bennett, deceased, against the Southern Railway—Carolina Division and the Southern I^ilway Company, for wrongful death of plaintiff’s intestate under provisions of Federal Employers’ Liability Act. Judgment for plaintiff, and defendants appeal.

Before Memminger, J., Hampton, December, 1912. The facts are stated in the opinion. Action by the Varnville Furniture Company against the Charleston & Western Carolina Railway Company.

Before M^mming^r, J., Hampton, December, 1912. Action by A. S. Eberle against the Southern Railway Company. From judgment for plaintiff, defendant appeals. The facts are stated in the opinion. cites: Punitive dawiages: 29 S. C. 265; 69 S. C. 434; 48 S. E. 460; 90 S. C. 435; 73 S. E. 790; 75 S. E. 10.18; 69 S. C. 434; 48 S. E. 460.

Before Bowman, J., Charleston, September, 1913. Action by Eliza Coley against J. M. Coley. Heard upon the ex parte petition of W. A. Holman. Erom an. order directing payment to> petitioner of a certain amount out of the proceeds of a resale of property, defendant appeals.

Before Charles Carroll Simms, special Judge, Bamberg, November, 1913. Actions by Fannie G. Driggs and another and by Hubert Driggs, by his guardian ad litem, against the Southern Railway Company—Carolina Division.

<p>Criminad Law. Continuance. Witnesses. Charge to Jury. . Coroner's Inquest. Evidence.</p> <p>1. Where, on June 26th, the coroner’s jury found that a person’s death was caused by defendants, who were then held on the coroner’s warrant as material witnesses, after a secret session to which defendants’ attorney was denied admission, they were indicted for murder on July Tth, and the following day furnished the evidence and inquisition taken by the coroner, which was not filed, a motion for a continuance on July 9th, on which day the case, was set for trial, was addressed to the discretion of the trial Court, and the circumstances did not show that such discretion was erroneously exercised by denying the motion.</p> <p>2. On a trial for murder, one jointly indicted with defendants, but not on trial, was a competent witness.</p> <p>3. On a criminal trial, the modification of an instruction that, where the State relied upon circumstances to establish defendant’s guilt, it must prove each individual circumstance so relied on to the satisfaction of the jury to a moral certainty or beyond a reasonable doubt, or that the jury must disregard any such circumstance from further consideration, by adding that the force of all circumstances was with the jury, was not erroneous; the modification not being confusing or misleading, but emphasizing the proposition that the force and effect of the testimony was to be determined by the jury.</p> <p>4. A coroner’s inquest is within the spirit of Const., art. I, sec. 15, requiring all Courts to be public.</p> <p>5. A coroner’s inquest is merely a preliminary investigation and not a trial involving' the merits, and a suspected person has no right to appear by counsel and cross-examine the witnesses, as the only object of such a course would be to prevent a full investigation, in so far as it might tend to incriminate him, thus defeating the purpose of the inquest.</p>

<p>Before Wieson, J., Monck’s Corner, March, 1913.</p> <p>This was an action brought originally by Theodore G. Barker et al. against Harvey C. Thomas et al., for the recovery of possession of a tract of land in Berkeley county, which suit was commenced in July, 1906. The case -was tried before Judge Memminger and a jury. The jury found for the defendant and Judge Memminger of his own motion set aside the verdict on the ground that it was inconsistent with the testimony. .See Barker v. Thomas, 85 S. C. 82, 67 S. E. 1.</p> <p>Since then the Seacoast Timber Co. and Joseph E. Hey-ward were substituted as plaintiffs, and the case dismissed as to Mrs.' Haynes. The case was then tried before his Elonor, Judge John S. Wilson, and a jury, in March, 1913. At the close of plaintiff’s testimony the defendant made a motion for a nonsuit and direction of verdict on the grounds that plaintiffs had failed to connect with a grant or to show any title in themselves. This motion was refused and the case went to the jury, who rendered a verdict in favor of the plaintiffs. The defendant thereupon made a motion for a new trial on the same grounds practically as the motion for.a nonsuit, and on the additional ground that the testimony .showed title in defendant, and that the jury should have found for the defendant. This motion was refused by his Elonor in a short order, and from the order refusing a nonsuit and the order refusing a new trial, the defendant, Harvey C. Thomas, appeals to this Court.</p> <p>cites: 37 S. C. 102.</p> <p>cite: Payment of taxes evidence to go to jury: 82 S. C. 358; 45 S. C. 312. Evidence as to possession of plaintiff’s predecessors in title for jury: 3 Starkie Ev. 1229, 1226; 3 Term Rep. 158. Kind of possession necessary to hold uncultivated pine lands: 82 S. C. 358. The evidence being sufficient to presume a grant, and title in plaintiff’s predecessors, possession will be presumed within time required by law: Code Civil Proc., sec. 126.</p>

Before Rice, J., Anderson. ■ Ab Knox was convicted of assault and battery of a high and aggravated nature, and he appeals. cites: Cross-examination improper: 79 S. C. 197. Charge as to lower offense: 2 Enc. Pleading & Practice 855, 856; 25 Ga. 396; 71 Am. Dec. 181; 14 Am. Crim. Rep, 364; 74 S. C. 459.

Before Rice, J., Laurens, April, 1913. Action by J. W. Crawford against the Rice & Hutchins Baltimore Company to recover compensation due under contract for services as salesman. From judgment for plaintiff, defendants appeal. The facts are stated in the opinion. cite: Testimony as to value of services relevant on issue of credibility of witnesses: 16 S. C. 231; 66 S. C. 135; 87 S. C. 84.

Before Sitipp, J., Greenville, March, 1913. Action by John M. Sturdyvin against the Atlanta & Charlotte Air Line Railway Company. From a judgment for complainant, defendant appeals. cite: As to alleged negligence in not providing a handrail and running board on the side of tender: 1 Labatt, M. & S., secs. 35, 13; 78 S. C. 481; 30 Am.

<p>Ckimiptal Law. Vejttje. JurasDiCTioir.</p> <p>Under Const., art. I, sec. It, providing that no person shall be held to answer for a crime except in the county where the crime shall have been committed, the right of a party to be tried in a county where the crime was committed is jurisdictional, and hence defendant could not be lawfully convicted in L. county for selling a mortgaged mule in C. county.</p>

Before Rice, J., Laurens, April, 1913. Action by Lumnius Cotton Gin Company against D. H. Counts. From judgment for plaintiff, defendant appeals. The decree appealed from was as follows: “This is an action for the foreclosure of a chattel mortgage and sale of the property therein described. It was commenced by the service of a summons and complaint on the defendant on the 33d of November, 1913. Within due time the defendant answered.

Before C. J. RamagE, special Judge, St. George, September, 1913. Prosecution for unlawful entry, after notice, on lands of another. The defendant, John Richardson, Jr., being convicted in the magistrate’s Court, appealed to the Court of General Sessions, which affirmed the judgment of the magistrate. Defendant then appealed from the judgment of the Court of General Sessions.

<p>Sales por Future Delivery. Pleading. Joinder op Causes op Action.</p> <p>1. Under Code Civil Proc., sec. 218, a cause of action on an account stated may be joined in same complaint with a cause of action on an open account arising out of the same transactions, and a motion to strike out the cause of action on the account stated is properly refused.</p> <p>la. In an action on an open account, plaintiff must prove each item, and cannot recover interest except by express agreement, while, in an action on an account stated, he may recover upon proof that defendant agreed to the account as stated, and may, under Civ. Code 1912, sec. 2316, recover interest; hence a third cause of action on an account stated, based on practically the same facts as those alleged in the first two causes of action, which averred that there was an open account between the parties, will not be stricken on the ground of redundancy.</p> <p>2. A demurrer to a complaint to recover for breach of contracts for sale for future delivery is properly overruled where the allegations are susceptible of an inference that shows it to have been the bona fide intention of the parties to the contracts, at the time they were made, that the goods should be sold and delivered in kind at the future time specified in the contract.</p> <p>3. In an action by a broker against his principal for reimbursement for losses in purchases and sales of cotton for future delivery, it is immaterial that the names of the parties to contracts are not given, where it is alleged that both buyer and seller had the required intention as to bona fide delivery.</p> <p>3a. Where defendant failed to furnish cotton brokers with whom he had had transactions with sufficient funds to indemnify themselves on purchases and sales made for his benefit, the brokers were not bound to carry his contracts to maturity; it being the duty of the principal to indemnify his agent.</p> <p>4. That brokers, through whom defendant dealt in cotton for future delivery, closed out his transactions upon his failure to deposit sufficient margins, does not show that defendant had no intention of receiving and delivering the actual cotton, thus rendering the contract bad under Civ. Code 1912, sec. 3421, denouncing dealings in futures.</p> <p>3. A demurrer admits the allegations of a pleading attacked.</p> <p>6. In an action by a broker who suffered loss upon contracts entered into for a customer for the sale and purchase of cotton in the future, where different inferences as to whether the transactions constituted dealings in futures, denounced by Civ. Code 1912, sec. 3421, could be drawn from the allegations of the complaint admitted by the demurrer, the complaint is good; the questions being for the jury.</p> <p>7.. Under Civ. Code 1912, sec. 3421, providing that every contract for the sale or transfer at any future time of any cotton, etc., shall be void, unless it is the intention of both parties to the contract that the cotton shall be actually delivered, a broker who entered into contracts on behalf of defendant for the future sale and purchase of cotton cannot recover thereon, where defendant had no intention of actually receiving or delivering the cotton.</p>

<p>Before Gage, J., Barnwell, November, 1913.</p> <p>Proceeding’ under summons, to. renew execution- on judgment recovered in 1896, issued and served in October, 1913. From order refusing motion, J. R. Pringle and T. Moultrie Mordecai, receivers of the Royal Fertilizer Company, claiming the judginent under an assignment from the plaintiff, First National Bank of Charleston, made on 23 June, 1911. Appeal.</p> <p>cites: 13 S. C. 120 and 59 S. C. 70.</p> <p>cites: 81 S. C. 89; 45 S. C. 11; 19 S. C. 498; Code Civil Proc., secs. 347 to. 349.</p>

Before Gage, J., Barnwell, November, 1913. Action by Mrs. Quilla Lott against Southern Railway Company. From order of Circuit Court granting a new trial, the defendant appeals. The facts are stated in opinion. submits: Circuit Judge should have given judgment absolute for defendant: Code Civil Proc., sec. 407; lb., sec. 304.

Before Frank B. Gary, J., Bennettsville, November, 1913. Action by H. T. and A. G. Easterling, copartners, etc., against C. D. Odom.

<p>Before Spain, J., Bamberg, March, 1913.</p> <p>Action by Henry Mitchum against Emma R. Shaw, Minerva K-inard, Henry Chassereau, Willie Chiassereau, G. B. Clayton and J. E. Connelly. From decree for plaintiffs, Clayton and Connelly appeal.</p> <p>cite: 17 Stats, at Large 76; 28 S. C. 532; 81 S. E. 307 and 49 S. C. 1.</p> <p>cite: 49 S. 'C. 4; 81 .S. E. 301; 37 S. C. 77; Code Civil Proc. 123.</p>

Before Frank B. Gary, J., Manning, February, 1914. Action in claim and delivery by D. M. Rogers against Julia Ann Felder. From judgment for plaintiff, defendant appeals on the following exceptions: I. The Circuit Judge erred as a matter of law in not delivering the property in dispute to C. M. Davis & Son by virtue of the affidavit of said C. M'. Davis & Son. II.

<p>Before Rice, Marion, April, 1913.</p> <p>Action by Nathan Barnett against Samuel L. Gottlieb to recover damages for an assault. From judgment for defendant, plaintiff appeals.</p> <p>Cross-examination of plaintiff in discretion of Judge: 73 S. C. 386 ; 33 S. C. 39.</p>

<p>Before Spain, J., at chambers in Lexington, February, 1914.</p> <p>Action pending in the Court of, Common Pleas for Abbe-ville county by Pearl M. Beckwith against W. B. Martin. Plaintiff appeals from an order extending time within which to answer. The facts are stated in the opinion of the Court.</p> <p>cites:' 6 S. C. 473; Code Civil Proc. 335; 47 S. C. 31; 77 S. C. 85.</p>

<p>Landlord and Tenant. Excessive Distress Damages. Res Judicata.</p> <p>1. There being testimony of plaintiff tending to show a reckless disregard of his rights by defendant in levying a distress warrant upon his household goods the cause of action for punitive damages, because of an unreasonable and excessive distress, was properly submitted to the jury.</p> <p>2. A landlord taking possession of his tenant’s property under a claim of distress for rent, and requiring the tenant to resort to claim and delivery to recover the property, is estopped from asserting that the distress was void or illegal.</p> <p>3. A charge that the jury might infer wilfulness and wantonness from gross negligence not error where the jury were instructed that there is no wilfulness in the case and there can be no punitive damages unless the landlord had been so grossly negligent in keeping his accounts with the tenant that the law would impute wilfulness on account of such gross negligence in claiming an excessive amount due him as rent.</p> <p>4. If a landlord was reckless -in ascertaining the amount of rent due, and distrained for a larger sum .than was due; such facts were admissible as tending to sustain claim for punitive damages.</p> <p>5. The defense of res judicata comes too late, when not plead, and when presented to the Court for the first time on motion for a new trial.</p> <p>6. A judgment on a different cause of action is not res judicata in a subsequent action where the issues involved in the second action were not necessarily involved, and were not actually litigated, in the first action.</p>

Before Bowman, J., Anderson, June, 19l3. Action by Harrison Greer, alias Hack Greer, against W. N. Keaton.

Before Prince, J-, Abbeville, March, 1913. Action by W. P. Jones, as administrator of E. D. Clary, deceased, against Charleston & Western Carolina Railway Company for the wrongful death of intestate. At the close of the testimony the defendant moved the Court to direct a verdict in this case upon the following grounds: 1.

Before C. J. Ramage, special Judge, Monk’s. Corner, November, 1913. Action by WJ J. Matthews against Atlantic Coast Tine Railway Company. From judgment for plaintiff, and order refusing new trial, defendant appeals. The facts are stated in the opinion.

Before Memminger, J.,' Spartanburg, March, 1913. Actions by Noah D. Taylor and David W. Henderson against Spartanburg Railway, Gas & Electric Company. From judgments for plaintiffs, defendant appeals. cite: Right of carrier to make reasonable rules: 1 Elliott Railroads, secs. 199, 200, 202; 81 S. C. 143; Clark (Street Railway) Accident Law, 2d Ed., p. 193, sec. 81; 110 App. Div. 429; 96 N. Y. Supp. 249; 4 St. Ry. Reports 866.

<p>Before SeasE, J., Yorkville, Fall term, 1912.</p> <p>Action by C. S. Wilson, as administrator of the estate of D. ■ Rainey Wilson, deceased, against Southern Railway Company and Ed S. Mott. From a judgment for defendants, plaintiff appeals.</p> <p>submit: The record of proceedings at coroner's inquest was inadmissible: 66 S. C. 421. So testimony as to such proceedings and verdict: 84 Ala. 149; 68 L. R. A. 294. Objection being made was sufficient basis for exception: 59 S. C. 243-4; 63 N. Y. 256; 17 Wis. 37; 55 S. C. 340.</p> <p>submit: Objection to testimony did not state its grounds: 62 S. C. 546; 63 S. C. 559; 66 S. C. 61; 67 S. C. 419; 72 S. C. 411; 73 S. C. 104; 74 S. C. 246; 75 S. C. 74, 116, 201, 225. If testimony was irrelevant, its admission was within the discretion of the Court: 75 S. C. 116, 129, 201, and did not affect the verdict: 44 S. C. 548; 64 S. C. 112; 72 S. C. 174; 78 S. C. 33. The overwhelming preponderance of the evidence sustains the verdict: 78 S. C. 73; 91 S. C. 331; 93 S. C. 299, 426.</p>

<p>Before C. J. Ramage, special Judge, St. Matthews, December, 1913.</p> <p>The facts are stated in the opinion.</p> <p>submits: Appellant was entitled to jury trial of issues: Code Civil Proc., secs. 312, 326; 61 S. C. 568-569; 55 S. C. 198; 98 S. C. 271; 64 S. C. 234. Widow cannot transfer right to administer to another, 2 Strob. 335, against wish of the largest creditor: 2 Hill. 347; Rice 287.</p>

Before SeasE, J., Sumter, November, 1913. Action by W. J. Andrews and M. H. Andrews, doing business as W. J. Andrews & Son, against Atlantic Coast Line Railroad Company. From judgment for plaintiff, defendant appeals. The facts are stated in the opinion of the Court. cites: Not necessary to plead estoppel: 27 S. C. 235; 3 S. E. 214; 6 Enc. PL & Pr. 356; 81 S. C. 332.

Before Gage, J., Hampton, October, 1913. Action by Lewis C. Beach, as general guardian of Florence B. Addison, against Ezekiel Williams Addison and Richard Grady Addison, as executors of J. C. Addison, deceased. From a decree for plaintiff, defendants appeal. The facts are stated in the opinion. cite: Statute forbidding action within one year: 1 Civil Code, sec. 3962. Objection does not appear to have been waived: 3 Cyc. 155; 53 S. C. 313; 23 S. C. 125.

<p>Before Bowman, J., Walterboro', November, 1913.</p> <p>Action by Central National Bank against M. L. Grimes, W. F. Carr, B. R. Cox, W. H. Cox, J. P. Gay, H. H. Butler and Thomas Southwell. From a judgment for defendants, plaintiff appeals.</p> <p>submit same authorities as in Commercial Trust Co. v. Grimes, in this volume.</p> <p>submit same authorities as in Commerce Trust Co. v. Grimes, in this volume.</p>

Before DeVore, J., Gaffney,.November, 1913. Action by Nannie S. Hambright against Southern Railway—Carolina Division.

<p>Before Bowman, J., Walterboro; November, 1913.</p> <p>Action by Commerce Trust Company against M. L. .Grimes, W. E. Carr, B. L. Cox, W. H. Cox, J. P. Gay, H. H. Butler and- Thomas. Southwell. Prom judgment fo»r defendants, plaintiff appeals.</p> <p>The facts are stated in the opinion.</p> <p>cite: Case governed by pi S. C. 455, 8o S. B. 460. The circumstance that one of the McLaughlin Bros, was a stockholder in plain*tiff company is immaterial: 26 S. W. 975, 977; 10 Cyc. 1061; 74 S. C. 368, 374. As to bonafides: See 1 Pac. 789; 19 S. E. 561; 92 N. W. 348; 106 N. W. 942; 142 N. W. 139; 129 Pac. 798; 47 N. E. 196; 26 S. W. 975; 24 Atl. 356.</p> <p>cite: As to burden of proof: 91 S. C. 455. As to what circumstances are sufficient to put a purchaser of negotiable paper on inquiry: 44 L.-R. A. (N. S.) 395, 399, and note.</p>

Before Memminger, J., Columbia, October, 1913. Actions by Jefferson D. Daly, Thomas Stanclen and Rudolph Casello against Jefferson Hotel Company. From order remanding cases to the magistrate’s Court for a new trial, defendant appeals. The facts are stated in' the opinion. cite: 2 Dabatt Master and Servant, secs. 491, et seq.; 4 McC. 246; 1 Hill 401; 84 S. C. 73.

Before Wrrson, J., Lexington, November, 1913. Action by William J. Keenan against J. L. Matthews, as administrator with will annexed, de bonis non, of estate of Georg'e C. Clark, deceased, et al., to recover commissions on sales of certain timber, under the following contract: The State of South Carolina, County of Lexington.

Before Spain, J., Dillon, 1913. Action for partition of lands by Baler Church against Clyde Scott and W. T. Moody. Prom a decree in favor of plaintiff, the .defendant, Moody, appeals. The decree appealed from is as follows: By consent of all parties this action for partition was. heard by me at chambers upon an agreed statement of facts, a jury trial upon the issue of title having- been waived.

<p>Fire Insurance. Proof of Loss. Evidence.</p> <p>1. The proof of loss need only conform substantially to terms of policy. Where insured furnished insurer with a sworn statement which set' out the circumstances of the fire in question, and the insurer acted thereon without demand for any further or more particular “proof of loss,” it waived any defects in the proof of loss furnished.</p> <p>2. The sworn statement furnished the insurer by the insured in this case, stating the circumstances of the fire, as fully as they could be stated after a total destruction of the property insured, held, a sufficient compliance with the requirements of the policy.</p> <p>3. The proof of loss furnished the insurer under stipulations in policy is not admissible as proof in Court. But the testimony in Court may refer to data stated in the application or policy at the time the contract of insurance was made. /</p> <p>4. Where. a wife holding the legal title to land in fee, undertook to convey same to her husband by an unwitnessed deed, the husband thereby acquired an equitable interest in fee'; and the outstanding-legal title in the wife was not a breach of the warranty of title in husband as insured.</p> <p>5. The execution of a deed may be proven by its production, and proof of the grantor’s signature or her acknowledgment that she had executed it.</p> <p>6. Where the insurer or its agent has knowledge that a gin had been erected only about two months, and had shut down because of a defective engine, and was not being operated, when it wrote the policy of insurance, it thereby waived the express warranty in application for insurance, “that the property has been profitable, and the assured has every reason to believe that it will so continue.”</p> <p>1. The:*;’answer “owner,” written in an application on behalf of the insured for insurance, by the agent of insurer, who then knew the gin in question had been shut down because of a defective engine, and was idle, to the question, “is the gin operated by owner, manager or tenant?” is not a warranty by assured that it is being then operated. But if a warranty was waived by the insurer’s agent writing the policy with knowledge of the existing facts.</p>

Before Memminger, J., Spartanburg, March, 1913. Action by Josie Thornton against Spartan Mills. From judgment for plaintiff, defendant appeals.

<p>Accident Insurance. Forfeiture. Fraud. Evidence. Issue for Jury. Appeal and Error.</p> <p>1. In the absence of a stipulation in contract that the existence of other insurance renders the policy void, the Court cannot declare the policy void on that ground.</p> <p>lo. In an action on an accident policy which the insurer claimed was void because the insured had other insurance in force at the time of its issuance, where there was evidence for plaintiff tending to show that the insurer’s agent who knew of the existence of the policy stated that it made no difference, a verdict for plaintiff cannot be overthrown on appeal, even though the insurer offered evidence that the insured informed the agent he was on his way to cancel the other policy; the conflict in the evidence raising a jury question.</p> <p>2. Whether or not a release was obtained by fraud, being submitted to the jury, without objection, and there being evidence upon that issue, the jury had the right to decide it.</p> <p>3. Where the claimant under an insurance policy offered to return a cheque given him as the consideration for a release, he may attack the release for fraud in an action on the policy.</p> <p>4. The contract failing to stipulate that a policy of accident insurance was to take effect from time of delivery, rather than from the time the application was accented and the policy issued, injuries occurring after the acceptance of the application and issuance of policy, though before its delivery to the assured were covered by it.</p> <p>5. There being a conflict of testimony as to whether or not an insurance premium had been paid, that issue is for the jury.</p> <p>6. There being no provision in the contract requiring the beneficiary under a policy of insurance to pay the premium, the question whether she had ever paid it was irrelevant.</p> <p>7. Where.justice requires a claimant to make good his tender to return the consideration received for a void release, the Court may require him to return such consideration, or give credit for the amount thereof on the judgment as a condition for affirmance of such judgment.</p>

Before W. B. Gruber, special Judge, Barnwell, October, 1913. Action by Minnie C. Wray against Atlantic Coast Line Railroad Company. From order granting a new trial, plaintiff appeals. The facts are stated in the opinion. cites: Measure of damages for loss of personal baggage: 75 S. C. 58; 6 Cyc. 677; 68 S. C. 528. Questions not raised by exceptions: 34 S. C. 160; Code Civil Proc. 397.

Before Spain, J., Florence, November, 1913. Action by Maybank & Co., a corporation duly organized under the laws of South Carolina, against F. M. Rodgers. From a judgment for plaintiff, defendant appeals. The facts are stated in the opinion. cite: Evidence of intention: 89 S. C. 73; Wigmore Ev., sec. 377 (2) ; 11 A. & E. Enc. of L. 621; 60 Hun. Ill; 11 N. Y. Supp. 198; 110 Pa. St 177; 20 Atl. 113.

Before Ernest Gary, J., Barnwell, May, 3913. Action by A. Patterson against Henrietta Walker and Jerry Walker. From an order of nonsuit, the plaintiff appeals. The facts are stated in the opinion. submits: The variance of 38 per cent, in area shows a gross deficiency: 69 S. C. 261; 92 S. C. 384, 391, 393. The former cites: 92 S. C. 384; 41 S. C. 508; Harper L. 392; 54 S. E. 506; 69 S. C. 261; 48 S. E. 50.

<p>Before Bowman, J., Ridgeland, September, 1913.</p> <p>Action by Fannie B. Mitchell and Rebecca Mitchell, by their guardian ad litem, Nancy Mitchell, against Elliott Hamilton and W. P. Tillinghast for recovery of possession of' land. From a judgment for plaintiffs, defendants appeal. The facts are stated in the opinion.</p> <p>cites: Burden on ■plaintiffs to prove title: 1 Mills 184; Tyler, Ejectment, 72, 738; 15 S. C. 274, 277. Adverse possession under contract to purchase after twenty years: Civil Code 2449. Charge on adverse possession: 21 S. C. 480.</p>

Before Memminger, J.,- Columbia, September, 1913. The defendant, E. Winter, being convicted for a violation of Criminal Code, sec. 208, appeals. The facts' are stated in the opinion. submits: Ordinarily a promise to pay at a future event is not a criminal fraud: 2 Bishop Crim. Law (5th ed.) 419, 420; 32 S. E. 318; 124 N. C. 796; 37 S. E. 268; 127 N. C. 553. A postdated cheque no more than promise to pay: 73 N. Y. 80; 86 N. E. 993; 41 L. R. A. (N. S.) 173, 174, note.

Before Rice, J., Charleston, February, 1914. The defendant, Allen Smalls, convicted, under an indictment for arson, and sentenced to imprisonment for ten years, appeals.

<p>Carriers. Stipulation of Time for Presentation of Claim. Waiver.</p> <p>Where a statement of claim on account of a loss of goods (of which loss the carrier’s agent had notice within the time limited for presentation of claims) is presented, after the time limited by the contract, and the carrier receives seme; and requests the claimant to furnish further information with reference thereto, and considers the claim on its merits without notice that the time limit would be relied upon, it waives its right to insist upon such limitation.</p>

<p>Before DeVore, J., and Si-iipp, J., Greerivill’e, November, 1912, and April, 1913.</p> <p>Action by Paris Mountain Water Company against Camperdown Mills. From order of Judge DeVore overruling demurrer to. answer, the plaintiff appeals. From judgment rendered by Judge Shipp both parties appeal. The facts are stated in the opinion.</p> <p>The answer of defendant was as follows:</p> <p>The defendant by this amended answer to the complaint herein:</p> <p>1. Admits paragraph 1 of the complaint and denies, so much of paragraph 4 as alleges that fifteen cents per thousand gallons -was. the minimum charge which could be made by plaintiff under the franchise from the city.</p> <p>2. The defendant alleges that at the times, referred to in the complaint the plaintiff was, and now is, engaged in the. business of furnishing water to the city of Greenville for public purposes and to. the people of said city and the territory adjacent thereto, for domestic manufacturing and other purposes. That the plaintiff is and was a quasi public corporation and is engaged in serving' the public in the matter of furnishing' water as aforesaid. That under the laws, of this State, it has the right to condemn lands for its. corporate purposes and to exercise other valuable franchises, given to public- service corporations. That under the franchise granted by the city of Greenville and under the ordinances of said city it possesses the right to- use the streets, alleys and other public places in said city for the purpose of maintáining its wmter main and discharging its duties as aforesaid.</p> <p>3. That under the law'’ it is bound to serve the public at reasonable charges not in excess of those set forth in its franchise and without discrimination as between customers of the same class and that any discrimination between its customers is illegal and void.</p> <p>4. The defendant admits paragraphs 3 and 3 of the complaint, but alleges that said contracts were made under the following circumstances: The defendant applied to- the plaintiff for water to- be used in the said mill and on Broad street, as stated in paragraph 3, and asked for the lowest price. That the agents for the plaintiff' informed the defendant that fifteen (15) cents per thousand gallons was the lowest price charged any of its customers. That relying- upon said assurance, and having no knowledge of any lower charge, this defendant entered into said contracts and continued to pay for water at the rate mentioned in said contract, to wit, 15 cents per 1,000 gallons, until sometime in the spring- of 1910, when defendant learned that the plaintiff was, during all of said time, furnishing other cotton mills' situated in its territory and under similar conditions and using about the same quantity of water as. this defendant, with water at the price of 10 cents per 1,000 gallons. That upon learning of this fact the defendant declined to make any further payments on a basis of 15 cents per 1,000 gallons, but offered to- pay, and is still willing to- pay, on a basis of 10 cents per 1,000 gallons, but the plaintiff declined to allow the defendant to settle on said basis.</p> <p>5. This defendant alleges that plaintiff, by its contracts aforesaid, wrongfully and illegally discriminated against this defendant, charging- it a higher rate than the rates charged other customers under similar circumstances and that said charges, in so far as they are in excess of the rate charged other customers -of like character and using like quantities of water, are illegal and wrongful.</p> <p>That the amount of the overcharge made by the plaintiff for the two- quarters referred to- in the complaint is one hundred seventy-nine- and 42-100 ($179.42) dollars. Denies the allegations of paragraph 9.</p> <p>As a counterclaim this defendant alleges :</p> <p>1. That the plaintiff herein is. duly corporated under the laws of the State of South Carolina, as a public service corporation and is engaged-in the business of furnishing water for public manufacturing and other purposes to the city of Greenville and to the people of that, city and adjacent territory. That it enj oys the right of eminent domain under the laws of this State and under the ordinances of the city of Greenville, certain valuable franchises, including the rights to use the streets, alleys and public ways for maintaining its water mains and the right to supply the citizens of Green-ville with water.</p> <p>2. That the plaintiff is bound under the laws and under the statutes of the State and under the ordinances of the city of Greenville, to furnish the users of water in its territory at a. reasonable rate, not in excess of those rates referred to1 in the city ordinance and without discrimination as between customers of the- same class.</p> <p>3. That the defendant herein is engaged in the business of the manufacture of cotton goods in the city of Greenville and in its said business and for the use of its employees, it consumes a large amount of water, which water is supplied by the plaintiff corporation.</p> <p>4. That the plaintiff, in violation of its legal duties, as. aforesaid, did wilfully and wrongly charge and exact of this defendant a price for the water consumed by it during the years of 1908, 1909 and for the first quarter of 1910, at the rate of 15 cents per 1,000 gallons, aggregating two thousand eighty-four and 34-100 ($2,084.34) dollars. That during the said period plaintiff was furnishing water for other cotton mills and manufacturing companies of the same class as the defendant and using practically the same amount of water, at a price of 10 cents per 1,000 gallons and that the plaintiff company, during- this period, wrongfully represented to the defendant that 15 cents per 1,000 gallons was the lowest price at which it furnished water to its customers, and this defendant made payment of the said price without any knowledge that the said statement of the plaintiff corporation was untrue, believing that the prices charged defendant were as low as those charg-ed other mills. And the plaintiff did, in violation of its legal duties, charge this defendant and insist upon this defendant paying for water used during the second and third quarters of the year 1910, the price of 15 cents per 1,000 gallons.</p> <p>5. That the defendant is entitled to recover of the plaintiff the money wrongfully exacted from it, as aforesaid, being ■the sum of six hundred ninety-four and 78-100 ($694.78) dollars, this being the amount of the overcharge as aforesaid, together with interest from' the time of payment, and for the further sum of two' hundred and no-100 ($200.00) dollars, as damages, for the wrongful and tortious conduct of the plaintiff as aforesaid.</p> <p>Wherefore, this defendant prays judgment against the plaintiff for the sum of six hundred ninety-four and 78-100 ($694.78) dollars, with interest as aforesaid, together with two hundred and no-100 ($200.00) dollars as damages.</p> <p>The grounds of demurrer were as follows to- both defense and counterclaim:</p> <p>“The defendant admits that it contracted with the plaintiff to pay for water at the rate of 15 cents per 1,000 gallons, that it consumed the , quantity charged by the plaintiff and that it paid therefor in full up to April 1, 1910; it demands a return of the difference between 15 cents per 1,000 gallons and 10 cents per 1,000 gallons, upon the ground that the plaintiff during the life of the contract furnished other cotton mills, situated in its territory and under similar conditions as the defendant, with water at the rate of 10 cents per 1,000 gallons and that the rate charged the defendant in excess of the rate charged said other cotton mills was illegal and wrongful. Such facts constitute no- cause of action against the plaintiff, in the face of the defendant’s contract, for the reason that it is not alleged that the rate charged the defendant and agreed upon, was in excess of the rate authorized by law or unreasonable, and if a rate to furnish customers is less than the reasonable rate which the piantiff may demand from all, the discrimination is at the plaintiff’s expense and does not infringe on any right of the customers generally. A concession to a consumer does, not fix a new schedule of rates for all.</p> <p>The following'was an additional ground of demurrer to the counterclaim:</p> <p>The answer shows that the money the defendant new seeks to recover back from the plaintiff was paid by the defendant voluntarily, under a contract in writing signed by it, without duress, or legal compulsion, and an action will not lie now to recover it back.</p> <p>cite: .In support of demurrer to answer: 18 T. R. A. 1197; 27 T. R. A. (N. S.) 674; 21 T. R. A. 517; 52 So: 915; 12 Fed. 309; 58 E. R. A. 285; 29 S. C. 265; 5 Am. & Eng. Ene. L. 179. Voluntary payments: 90 S. C. 475. Interest should be allowed, both the amoimt to be paid and time for payment being reasonably certain or capable of ascertainment: 2 Speer 536; 2 Bailey, 374; 4 McC. 59; 3 McG 498; 16 Am. & Eng. Enc. of L. 1013, 1014; 104 U. S. 771; 2 Speer 594; 10 S. C. 492; 16 S. C. 593; 34 S. C. 518; 47 S. C. 186; 49 S. C. 450. Rates for taxpayers in city do not'apply to consumers outside of the city: 87 S. C. 566; 105 Fed. 1; 34 L. R. A. 525; 66 Fed. 140.</p> <p>.cite: Discriminations in charges by public service corporations not tolerated: 41 L. R. A. 240; 2 Wyman Pub. Ser. Corp:, secs. 1290 and 1292; 61 S. C. 83; 127 S. W. 1068; 13 Am. Rep. 457; 9 L: R. A. 764; 48 Am. St. Rep. 729; 48 N. E. 101; 181 U. S. 100; 79 P’. 1086; 41 E. R. A. 240; distinguish 87 S. C. 506. Recovery of excess charges: 22 Am. & Eng. Enc. of L. 609; Parsons Contracts, sec. 466; 9 E. R. A. 764; 49 S. C. 284.</p>

<p>Magistrates. Suspension or Removal. Appointment to Fill Vacancy.</p> <p>1. An appointment to fill a vacancy supposed to have been created by the suspension or removal of a magistrate is null and void, where no vacancy existed.</p> <p>2. The attempted suspension or removal of a magistrate from office, without having afforded him an opportunity to be heard on the charges assigned as cause for his removal, is ineffective and creates no vacancy which can be filled by a new appointment.</p> <p>3. Where a magistrate served to- show cause before the Governor why he should not be suspended from the office made return in person, and, with his attorney, attended the hearing before the Governor] who announced that notice would be given before any further action was taken, and the Governor subsequently called a meeting of the members of the House of Representatives for the county of the magistrate, without notice to the magistrate or the senator from the magistrate’s county, and at the meeting the magistrate was suspended, the action of the Governor was void.</p>

<p>Master and Servant. Federal Employers’ Liability Act. Federal Safety Appliance Act. Charge. Assumption of Risks.</p> <p>1. Where a switchman jumped at a footboard on the tender of an engine, missed his footing because o,f the defective condition of the board, and was thrown down and injured, and during the trial defendant’s counsel referred to the board as a "footboard” and “running board” interchangeably, he was not entitled to a ruling that the accident was not within the Federal Employers’ Liability Act, because such act forbids the use of defective “running boards” and that the board in question was not a running board, but a footboard.</p> <p>2. Where a switchman was injured while making up an interstate train, his right to recover depended on the Federal Employers’ Liability Act, which superseded all provisions of the State Constitution relating to assumed risk.</p> <p>3. Where, in an action for injuries to a switchman in making up an interstate train, the Court adjudged that the Federal Employers’ Liability Act alone governed' the case and that in the particulars mentioned in the statute assumed risk was no defense, remarks of the Court concerning the general law of assumed risk were not erroneous, as, in effect, adjudging that the defense of assumed risk was eliminated whether the defect causing the injury was a violation of the federal act or not.</p> <p>4. Where plaintiff, a railroad switchman, while making up an interstate train, jumped at a defective board on the tender of the engine, missed his footing, and was injured, whether the board was a “running board” within the Federal Employers’ Liability Act forbidding' the use of defective “running boards,” was for the jury.</p>

Before Prince, J-, Chester, Fall term, 1913. Action by James S. McKeowñ against Southern Railway Company. From judgment for plaintiff, defendant appeals. submit: No proof of bad motive accompanying ejection, verdict should have been directed for defendant as to punitive damages: 2 Suth. Dam. (3d ed.) 1085, 1092, 1095;.69 S. C. 434, 444; 2 Rich. D. 283; 3 S. C. 580; 28 S. C. 265; 35 S. C. 475, 488, 489, note; 28 Am.

<p>Before Prince, J., Chester, Fall term, 1914.</p> <p>Action by R. D. Douglas against Southern Railway Company. From judgment for plaintiff, defendant appeals.</p>

■ Before Spain, J., Columbia, February, 1913. Action by the Gregory-Conder Mule Company against J. B. Roddey. From a judgment for plaintiff, defendant appeals. cites: 'Case should have been submitted to jury: 68 S. C. 466; 78 S. C. 58; 40 S. C. 466. Issue as to payment: 77 S. E. 733. Novation: 39 Cyc. 1130.

Before Prince, J., Abbeville, April, 1913. . Action by Ella M. Thornton, administrator of estate of J. F. Thornton, deceased, against Seaboard Air Line Railway. The facts are stated in the opinion. From a judgment for plaintiff, defendant appeals.

<p>Criminal Law. Homicide. Evidence. Dving Declaration. ‘ Charge.</p> <p>1. A declaration and belief that a wound will eventually cause death does not show that deceased declarant had abandoned hope of recovery or believed death to be imminent, and does not justify the admission of the declaration in evidence against the person charged with the homicide.</p> <p>2. There is no presumption of law that any witness will tell the truth, and a charge that such presumption exists is error.</p> <p>3. A charge in a homicide case, that “the drift of the testimony for the defendant is that the killing was accidental—that her main defense is that the killing was an accident” is not prejudicial to the defendant charged with the homicide.</p> <p>4. Ordinarily it is not permissible to instruct the jury that the' testimony has a particular drift.</p>

<p>Wills. Devise or Bequests for Charitable Uses. Maintenance of Graveyards. Endowment of Church. Unincorporated Associaciatcon as Trustee.</p> <p>1. An unincorporated religious association may take under a will as trustee, property to be used as an endowment fund for a church and to keep up certain graves.</p> <p>2. Testatrix bequeathed the balance of her estate to be used for keeping up certain graves at F. church, and also as an endowment fund for the benefit of such church. Held, that the words providing that a part, of the residuary estate should be used to keep up the graves was not intended to create an enforcible trust, but one of a precatory nature, and the whole devise was sustained as a devise to charity.</p>

<p>Specific Performance. Election of Remedies. Appeal and Error.</p> <p>1. The burden is upon the appellant to show that findings of fact sought to be reviewed were against the preponderance of the evidence.</p> <p>2. The Court on appeal will not consider propositions of law not urged, or ruled upon, in the trial Court.</p> <p>3. A plaintiff having elected to ask for the specific performance of a • contract, cannot after being denied that relief on the hearing of the cause on its merits, demand that the action be treated as one-for damages for breach of contract, and that he be allowed to renew the contest in order to assert therein a right to such damages.</p>

<p>Fraudulent Conveyances. Appeal and Error. Resulting Trusts. Evidence. Adverse Possession. Limitation op Actions. Notice. Laches.</p> <p>1. Where certain real property was conveyed by the vendor to a debt- or’s wife and she paid the purchase price out of her own separate funds, there was no resulting trust in favor of the husband which could be enforced by his creditors.</p> <p>2. Where a husband conveyed certain real property to his wife, for an adequate consideration which she paid to him from her separate funds, and at the time of the transaction there were no suits pending or threatening against the husband by his creditors, the transaction was valid and could not be vacated by creditors subsequently obtaining judgment against the husband, on the ground that the conveyance was for the purpose of hindering, delaying, or defeating collection of their claims; there being no evidence of an intention to defraud.</p> <p>3. Where a conveyance between relatives, such as husband and wife, is attacked as a fraud on the grantor’s creditors, the burden is on the grantee to establish good faith by the fullest, clearest, and most satisfactory evidence.</p> <p>4. Adverse possession arises only in controversies between parties seeking to recover possession of real property where, during the existence of the adverse possession, they had legal right in them to bring the action, and is therefore no defense to a suit in equity by creditors to set aside alleged fraudulent conveyances.</p> <p>5. A suit in equity to set aside alleged fraudulent conveyances is within the six-year statute of limitations (Code Civ. Proc., section 137, subd. 6), and is barred within six years after creditors had knowledge of facts sufficient to put them on inquiry which, if developed, would have disclosed the alleged fraud.</p> <p>6. Where certain alleged fraudulent conveyance were made in 1894 and 1896 and valuable-improvements were placed on the property by the vendee, and the making of the conveyances could have been immediately ascertained by the exercise of the slightest diligence, creditors of the husband of the grantee were barred by laches from maintaining a suit instituted in 1910 to have the conveyances set aside.</p>

Before Cage, J., Barnwell, November, 1913. Controversy without action on agreed statement of facts, by J. B. Morris, sheriff of Barnwell county, against H. F. Buist, J. W. Patterson and N. M. Walker, county commissioners of said county. • The facts are stated in the judgment of the Circuit Court, which was as follows : “The sheriff of Barnwell county presented to the county commissioners a bill for $590, the aggregate of fees charged by him against the county for the service…

Before Memminger, J., Camden, November, 1913. Action by John Champion against Hermitage Cotton Mills to recover $7.94 wages, and $100.00 penalty for nonpayment of such wages by the defendant within time limited by Civil Code, sec. 3812. Prom judgment for plaintiff, the defendant appeals. The facts are stated in the opinion. cites: 96 S. C. 4.

Before DeVore, J., Union, September, 1913. Appeal by William Coleman and F. M. Farr as executors of the estate of Annie E. Rice, deceased, from a decree disallowing credits claimed by them in their final return. submit: Executors properly worked lands of the estate, 1 McC. Ch. 338, 1 Rich. Eq. 12, and are entitled to commissions on such transactions: 4 DeS. 110, 39 S. C. 253, distinguished. cite: 39 S. C. 247 to 253; 13 Rich. Eq. 201; 1 DeS. 542; 1 McC. Ch. 5, 6 and 7.

<p>Criminal Law and Procedure. Change of Venue. Affidavits. Trial. Continuance. Appeal and Error. Contempt. Attorneys. Jury Fees. Sentence. .Magistrate. Breach of Trust.</p> <p>1. An affidavit to obtain a change of venue, must state the facts relied upon as ground of motion, and, if, upon information and belief, also the sources of information and grounds of belief, with such definiteness, particularity and certainty, as would afford the basis of an indictment for perjury, if the affidavit be false, and would enable the Court to determine their sufficiency.</p> <p>2. Rulings of a magistrate on a former trial, reviewable on appeal, do not afford basis for motion to obtain a change of venue on the ground of prejudice of the magistrate.</p> <p>3. A continuance is properly refused when asked to obtain time to move for a writ of mandamus, to which the party is not entitled, because of his remedy by appeal.</p> <p>4. There is no abuse of discretion in refusing continuance for absence of defendant’s witnesses,' he having had ample notice of trial, and simply relied on his belief, in which he Was mistaken, that change of venue would be granted.</p> <p>5. Where a charge of contempt against a member of the bar involves his professional conduct, and charges a lack of respect on his part for constituted authority, the Court' on appeal will review the charges, which are not speculative, although the sentence for contempt may have been served by the attorney charged.</p> <p>6. An attorney filing an affidavit charging a magistrate with directing a constable to influence a juror, and with being prompted by malice and improper motives in his rulings, without stating the facts with such definiteness as would warrant the inference, if they were true, that the charge was well founded, is guilty of a contempt of Court.</p> <p>7. A sentence by a magistrate of 24 hours imprisonment for a contempt of Court is excessive.</p> <p>8. A refusal of a magistrate to accept an appeal bond and stay proceedings, on appeal from a judgment for contempt is error.</p> <p>9. A defendant in a criminal case cannot be required to pay jury fees or costs on demanding a trial by jury, to which he is entitled under the Constitution.</p> <p>10.It is improper for a magistrate to argue a cause on appeal, in support of the judgment rendered by him, and which should be considered upon the return made by him to the appellate tribunal.</p> <p>.11. It not appearing what contract existed between an attorney and client for the former’s compensation, and it appearing that the attorney had attended to other matters for the client, and when called upon for money collected, stated that the client was indebted to him for professional services to an amount as great as that which he had collected, and that as soon as he had collected the entire claim, he paid it to a third party for the client, and so notified the latter, a verdict of not guilty should have been directed on the charge against the attorney of breach of trust with fraudulent intent.</p>

Action by A. J. Twiggs and J. D. Twiggs, partners under the firm name of A. J. Twiggs & Son, against W. Z. Williams, W. A. Young and A. P. Cornell, partners, doing business under the firm name of W.… Held: although he himself' disregarded them. 3.

<p>Before Prince, J., Anderson, May, 1914.</p> <p>Action by Lula P.'Crawford against John N. Masters for specific performance of contract for sale of land. Prom a decree in favor of plaintiff, the defendant appeals on the following exceptions:</p> <p>1st. Because his Honor, the Circuit Judge, erred in holding that the plaintiff was entitled to a decree of specific performance, when he should have held that the plaintiff did not have such a title that she could convey the land in fee simple.</p> <p>3d. Because his Honor, the Circuit Judge, erred in holding that the birth of illegitimate issue and the passage'by the legislature of the act of 1906 (section 3563, Civil Code 1912), subsequent ü> the execution of the deed from H. K. Crawford to^ Lula Crawford, was such a performance of the condition of said deed as enabled the said Lula P. Crawford to convey the land in fee simple and thereby bar the rights of the issue and cut off the reverter of the grantor.</p> <p>3d. Because his Plonor, the Circuit Judge, erred in holding that the legislature had the right by the act of 1906 (section 3562, Civil Code 1912), to change or divest the right of reverter of the grantor, H. K. Crawford, when he should have held that the said act of the legislature, having been passed since the execution of the deed by H. K. Crawford to Lula P. Crawford, to construe the said act as applying to this case would impair the obligation of a contract, to wit: the said deed from the said PI. K. Crawford to Lula P. Crawford.</p> <p>4th. Because his Plonor, the Circuit Judge, erred in refusing to hold that .the legislature had no1 power under the Constitution to- divest or change the right of reverter of the grantor, PI. K. Crawford, under the deed executed by him to Lula P. Crawford.</p> <p>5th. Because his plonor, the Circuit Judge, erred in refusing to hold that the act of 1906' (section 3562, Civil Code 1912)-, has no application to this case because: (a) The act does not apply unless the mother dies intestate, (b) The act does not apply to fee conditionals, (c) If the illegitimate child, Lucile Crawford, should die before her mother, Lula P. Crawford, the act could not apply, and, therefore, the condition of the deed would not be performed.</p> <p>The facts are stated in the opinion.</p> <p>submits: Statute conferring rights on illegitimate children should be strictly construed: 78 Miss. 209; 84 Am. St. Rep. 624; 183 111. 486; 75 Am. St. Rep. 124. To construe it as affecting contracts made before its passage zvould impair the obligation of the contract, and divest vested rights: 96 U. S. 595; 24 L. Ed. 793; 6 Cr. 87; 3 E. Ed. 162; 11 Am. Dec. 90.</p> <p>cite: As to nature of fees conditional: Plarp. 'L. 92; 5 Rich. Eq. 441; 17 S..C. 545; 28 S. C. 238; 47 S. C. 294; 90 S. C. 474; 91 S. C. 487; 1 Hill Ch. 276; 53 S. C. 197; Bailey Eq. 226. Right of reverter'a mere possibility, and not property: 81 S. C. 284, 285; 31 S. C. 13, 37; 1 Hill Ch. 265; 2 Hill Ch. 244. The law defines heirs: 76 P'a. St. 81; 18 Am. Rep. 428. Interest cannot pass by devise: Harp'. E. 92; 5 Rich. Eq. 441. Performance of condition: 91 S. C. 494. Statute to be construed according to legislative intent: 134 U. S. 624; 33 E. Ed. 1083. Intent to ameliorate the harsh rule of the common law against illegitimates: 2 Kent Com. 209; 84 Ala. 284; 4 So, 675.</p>

Before E. B. Gary, J., Darlington, December, 1913. Action by John K. Kirven against Ralph D. Wilds, Elliott Wilds, David Wilds and James Wilds, for foreclosure of two mortgages on certain lands. From decree for foreclosure, the defendants, Elliott Wilds, David Wilds and James Wilds appeal. The facts are stated in the opinion. submit: Bindings of fact against appellants: 92 S. C. 113.

<p>Before Prince, J., Columbia, February, 1914.</p> <p>Action by Mary Nunnamaker, an infant, by Ida T.. Nunnamaker, her guardian ad litem, against Smith’s, a corporation, and IT. K. Smith. From &n order granting a new trial IT. K., Smith appeals. The facts are stated in the opinion. The case had been before the Court on a former appeal; see 96 S. C. 294, where the complaint is stated.</p> <p>submits: Defendant, H. K. Smith, having been acquitted should be discharged, and cites 65 S. C. 344; 75'S. C. 293; 82 S. C. 520.</p> <p>submits: In actions against master and servant for injuries caused solely by the misfeasance of servanta verdict cannot be rendered in favor of the servant and against the master: 68 S. E. 1103; 30 L. R; A. (N. S.) 404 and notes, pp. 407, 408; 73 S. E. 1062; 200 Mo. 347; 9 L. R. A. (N. S.) 880 and note, p. 884; 218 111.. 414; 2 L. R. A. (N. S.) 764; 142 U. S. 18; 35 L. Ed. 923, 925. Servant personally liable: 72 S. C. 472, 473; 2 L. R. A. (N. S.) 379 and note; 48 S. C. 324; 82 S. C. 523, 524; 131 ICy. 142; 25 L. R. A. (N. S.) 343 and note; note in 50 L. R. A. 644; 3 Thomp. Corp. 4091; 1 A. & E. Enc. of E. (2d ed.) 1134, 1135. Cases distinguished because other acts of negligence than those of agent were involved: 65 S. C. 344; 68 S. C. 55; 194 U. S.141; 48 E. Ed. 910; 75 S. C. 290; 65 S. C. 338; 93 S. C. 342, and review of authorities in note in 30 L. R. A. (N. S.) 404 to 407.</p>

<p>Before Gage, J., Columbia, Nall term, 1912.</p> <p>Action by M. B. DuPre against the Columbia, Newberry & Laurens Railroad Company. Judgment for plaintiff, and defendant appeals.</p> <p>cite: 91 S. C. 379, 381; 125 U. S. 181; 31 R. Ed. 650; 125 U. S. 465; 162 U. S. 197; 40 R. Ed. 490; 34 S. W. 145.</p>

<p>Before Bowman, J., Abbeville, February, 1914.</p> <p>Bob Mitchell, being convicted of entering a dwelling house in the nighttime, without breaking, with intent to steal, appeals. The facts are stated in the opinion.</p> <p>cites: Bishop Crim. Law, sec. 343, 559, 1057, .1064; 34 Conn. 57; Const. 1895, art. I, sec. 17; 46 S. C. 13; 65 S. C. 187.</p>

Before Bowman, J., Charleston, November, 1913. Action by Carolina Rice Company against West Point Mill Company. From a judgment for the defendant, plaintiff appeals. The facts are stated iii the opinion.

Before Bowman, J., Walterboro, November, 1913. The defendant, I. S. Remacks, being convicted of murder, appeals. The facts and exceptions are stated in the opinion.