Volume 99 — South Carolina Reports

<p>Before Hon. W. A. Holman, special Judge, Columbia. May, 1914.</p> <p>Action by R. B. Herbert, a freeholder and taxpayer of the city of Columbia, against E. A. Griffith, mayor, and R. C. Keenan, C. M. Asbill and E. M. DuPre, councilmen of said city, to enjoin a proposed issue of municipal bonds by said city. Erom a decree refusing such injunction, the plaintiff appeals. The facts are stated in the opinion of the Court.</p> <p>The plaintiff appealed upon the following exceptions and assign errors therein, to wit:</p> <p>1. Because his Honor, the Circuit Judge, erred in holding that there had been a substantial compliance with the laws of this State in the wording of the petition and of the ballots, and in overruling thereby the first objection raised by the appellant as to the validity of the bonds, said objection being as follows:</p> <p>“That the petitions requesting the election and the ballots voted at the election called for an issue of five hundred thousand dollars in bonds for the purpose of enlarging, extending and repairing its waterworks, waterworks system and plant, its sewerage system and plant, without a separate statement in petition and ballots and separate vote upon the amount to be expended for.-enlarging and extending, the amount to be expended for repairs, the amount to be expended for waterworks plant and system and the amount to be expended for sewerage system and plant.”</p> <p>2. That his Honor erred in holding that in the city of Columbia elections for the issuance of bonds can be held between the hours of 7 a. m. and 4 p. m., whereas, in fact, the law requires that the polls be open from 8 a. m. to 8 p. m.</p> <p>3. That his Honor erred in overruling the third objection to the issue of the bonds raisel by this appellant, which was as follows:</p> <p>“That the amount of this proposed bond issue, together with the now outstanding*b6nded indebtedness of the city of Columbia, is in excess of 8 per cent, of the taxable value of the city of Columbia, and the Constitution does not permit such excess indebtedness where the proceeds of the proposed issue are to be used in part for ‘repairs.’ ”</p> <p>' The error being, that where the petitions and the ballots used the word “repairs” there is not sufficient compliance •with the provision of the Constitution, article VIII, section 7, that certain cities, including Columbia, are allowed to issue bonds in excess of 8 per cent, of the .assessed value of the taxable property therein, where “the proceeds of such bonds are applied solely for the purchase, establishment, maintenance or increase of waterworks plants and sewerage system.”</p> <p>4. Because his Honor erred in holding that the sinking fund of six thousand dollars a year, as proposed by the respondents herein, was sufficient to meet the requirements of the Constitution, article VIII, section 7.</p> <p>cites: As to necessity for separate submission of each proposition to voters: 83 S. C. 136; 69 Kan. 74; 2 Am. & Eng. Ann. Cases 367; 83 S. C. 462, 464; 83 S. C. 546; 93 S. C. 447. Hours of election: Civil Code, sec. 3091. Limitation of indebtedness: Const., art. VIII, sec. 7. Sinking fund: Const., art. VIII, sec. 7.</p> <p>distinguish: 83 S. C. 136; 83 S. C. 462; 83 S. C. 546; 93 S. C. 447; 61 S. E. 707; 12 Kan. 186; 119 La. 215 ; 12 Am. & Eng. Ann Cas. 847; 69 Kan. 74; 2 Am. & Eng. Ann. Cas. 367, and submit bond issue for waterworks 'and sewerage is not a dual proposition: 97 Pac. 817; 151 Cal. 572; 91 Pac. 387; 76 Neb. 552; 107 N. W. 983; 112 Ky. 409; 122 N. Y. 799. Hours of election: Civil Code 3015 and 3050; 22 Stats. 83, 88, 453, 507. Civil Code, sec. 3015, applies only to the institution or original creation of the system; Civil Code, sec. 3050, applies to the enlargement of existing plants and systems; both statutes referred to Civil Code, sec. 208, for hours of election, the law existing when they were enacted in i8pó and 18pp. No hours for elections named in Civil Code: Secs. 1742,-1826, 2931, 3050. Different hours in: Secs. 289, 3015, 2931, 3050. Sec. gop 1 limited to elections specified: Act of 1910, 26 Stat.\ 523, Civil Code, art. VIII, ch. 48, reviewed; 44 L .R. A. 152. Maintenance includes repairs: Const., art. VIII, sec. 7; 5 Words & Phrases 4281, 4282 ; 2 Woods Landlord & Tenant, p. 807, sec. 369; 27 Vt. 529; 58 N. H. 252; 56 S. W. 451. Five thousand two hundred sixty-one dollars and seventy-five cents, as an annual payment for 40 years, compounded annually at 4 per cent, per annum, will create sinking fund of $goo,000.00.</p>

<p>Before Bowman, J., Orangeburg, June, 1914.</p> <p>Action by John X. Weeks and William C. Smoak, freeholders and taxpayers of Orangeburg, against R. F. Bryant, as mayor; F. J. D. Felder and H. Van Ohsen, councilmen, composing the city council of Orangeburg, to enjoin the issuance of certain municipal bonds, attempted under the provisions of Civil Code, 1912, sec. 3015, for the establishment of a waterworks and an electric light plant. The decree of the Circuit Judge, omitting his review of certain decisions, was as follows :</p> <p>This action is brought by the plaintiffs as citizens and taxpayers of the city of Orangeburg, to enjoin the issue of sixty thousand dollars of bonds of the city of Orangeburg, which the defendants, as mayor and councilmen of the said have determined to issue, and have entered into a contract for the sale of said issue of bonds. The plaintiffs set out in their complaint all the steps taken by the city council of Orangeburg, and the complaint and exhibits attached show fully the proceedings preparatory to the election held on the 29th day of April, 1913, upon the question of issuing the said bonds, and alleges in terms that all the votes cast at said election were in favor of the issuing of said bonds, save three votes, the number of ballots cast being ninety-nine— Éiinety-six thereof being in favor of said bonds, and three thereof being opposed to said bonds. * * *</p> <p>The plaintiffs, in their complaint, attack the validity of said bonds upon four grounds, and ask that the defendants, the city council of Orangeburg, be enjoined from issuing said bonds and selling the same for the reasons stated in the four grounds of objection.</p> <p>The first is as follows :</p> <p>That “at said election held April 29, 1913, the question of issuing bonds for a waterworks and electric light plant was submitted to the voters of the city of Orangeburg as a si-ngie question or proposition, and no opportunity was given to the voters to vote upon said question or proposition separately. Whereas, it is submitted that sec. 3015 of the Code of Taws of South Carolina, 1912, vol. I, and sec. 5 of article VIII of the Constitution of South Carolina, T895, which authorizes the issuance of said bonds, required as a condition precedent thereto, that the question of issuing bonds for waterworks, and the question of issuing bonds for an electric light plant, shall be voted for separately, at an election or electons.”</p> <p>The plaintiff, to sustain this position, rely upon . four cases which have been decided by our Supreme Court in the past few years, namely: Ross v. Lipscomb, 83 S. C. 136, 65 S. E. 451; Johnson v. Roddey, 83 S. C. 462, 65 S. E. 626; Chase v. Gilbert, 83 S. C. 546, 65 S. E. 735, and Ex Rel. Watkins v. Brasington, mayor, 93 S. C. 447, 76 S. E. 1086^ The plaintiffs contend that these cases are conclusive’’üf this question and sustain their contention, but we do not think so, and do not so understand from a reading of the cases cited. * * *</p> <p>We think that the case at bar, now under consideration, presents a different state of facts, and a different proposition from any of the cases cited. In this case the petition signed by a majority of the freeholders, as shown by the tax books of the said city of Orangeburg, and about which there is no dispute, was in the following words: “We, the undersigns freeholders of the said city of Orangeburg, and being majority of the freeholders of the said city of Orangeburg, as shown by the tax books of the said city of Orangeburg, do hereby petition the said city council of Orangeburg, that' an election be ordered by the said city council of Orange-burg, at which election shall be submitted to the freeholders, qualified voters, and qualified registered electors of the said city of Orangeburg, the question of issuing coupon bonds of the said city of Orangeburg in the sum of sixty thousand ($60,000.00)' dollars, for the purpose of establishing^aud maintaining a waterworks and light plant in the said city' of Orangeburg, the proceeds of said bonds to be applied solely and exclusively to the establishment and maintenance of a waterworks and lighting plant for the use of the said city of Orangeburg, and its citizens, as provided by law, etc.” It apears from this petition that there was but a single proposition to be voted for, namely, the establishment of a combination, single or unit plant, to be used for the dual purpose of furnishing both water and generating electric lights for the city of Orangeburg.</p> <p>The answer of the defendants sets forth, and the allegations are admitted by the plaintiffs, that the purpose and intention of issuing said bonds was to establish a single plant, and to operate and maintain the same for the dual purpose of supplying water and electric lights for the city of Orangeburg and the citizens thereof, and that the proceeds of the sale of said bonds are to be applied solely and exclusively to establish, operate and maintain a single or unit plant, and said proceeds are to be expended by one and the same department of the city, the operation of the said single or unit plant to supply both water and lights to the said city of Orangeburg and its citizens.</p> <p>That the said combination or unit plant is to be located on the North Edisto River, about one-half mile from the city of Orangeburg, and the water for the said city is to be forced and pumped through the mains into the reservoirs of said city for the use of said city and its citizens; and the electric lights to be generated by the same plant, transmitted and conveyed thence into the said city of Orangeburg for the use of the said city and its citizens; and that the said plant and entire system is to be under one and the same management. And that by reason of the fact that the same sité, motive power, machinery, materials, pipes, fixtures and appurtenances are to be used in the operation of the said plant for supplying both electric lights and water to the said the officials of the city were unable to estimate separculély as to the cost of that part of the plant which was to furnish water and that part of the plant which was to generate and transmit electric lights into the said city. That the voters were well informed at the time of the election of the purpose of this single combination or unit plant.</p> <p>In-the case of the city of Chillicothe v. Wilder, 200 Mo. 97, 98 S. W. 594, the question of a single plant for waterworks and electric lights was before the Court, and the Court clearly held that this might be submitted as a single proposition, and was not a submission of a proposition involving two questions, as it clearly appears that it was the purpose to erect one plant, on one site; to be conducted under one management.</p> <p>It seems to us that the test, “Whether the proposition for issuance of municipal bonds is single so that it can not be submitted to the voters in combination, is not its ability to stand alone, but whether or not the several parts of the project and-the component parts of the plant are so related, they form in fact but one single or rounded whole; whether the two purposes are so intimately related and connected and interwoven that they can not be separated.'’’</p> <p>In all respects, the case at bar clearly conforms to this test, and complies with its requirements. We, therefore, hold that the contention of the plaintiffs on this ground is not supported and can not be sustained. The plant proposed to be erected is a single, combination or unit plant, and there was but a single proposition to bef submitted to the voters at the election held upon the issuing of bonds in question on the 29th day of April, 1913.</p> <p>The second ground of objection urged by the plaintiffs against the validity of the proposed bond issue is that the precise question for which said bonds were to be issued was not set forth in the petition, and that the ordinance or resolution ordering said election submitted a different proposition. In other words, that the language used in the petit^n signed by the majority of the freeholders was not the same in wording as that used in the resolution providing for said election. The words setting out the purpose for the issue of said bonds used in the petition were as follows: “For the purpose of establishing and maintaining a waterworks and electric light plant.’’ The words used in the resolution ordering said election were as follows: “For the purpose of establishing, maintaining, constructing and operating a waterworks and electric light plant in the city of Orange-burg.” In the petition “establishing and maintaining” are used, and in the resolution ordering the election the same words, “establishing and maintaining,” are used, with the additional words, “constructing and operating” a waterworks and electric light plant. The word “establishing” ■has the same meaning in large measure as “constructing,” and the Word “maintaining” implies “operation.”' So that the words “constructing and operating” were simply, in fact, a repetition of the words “establishing arid maintaining.” The difference in the meaning, if any, is so slight that it amounts to nothing. Especially when it is alleged in the answer and admitted by the pleadings that the voters well knew the purpose for which said bonds were to be issued. Judge Woods, in the case of Dick v. Scarborough, 73 S. C. 153, 53 S. E. 86, says: “It is' true power to hold an election to authorize the issuance of bonds to purchase waterworks, is not given in this statute by the use of 'the word ‘purchase,’ to establish waterworks may be accomplished by purchase as well as by construction. Establishing waterworks obviously here means an acquirement and inauguration of the system of waterworks as a muncipal enterprise, and as a municipal property, by their construction or purchase.” The learned Judge further continues: “It thus appears that the municipal voter with full knowledge, by the election, gave their assent to the bond issue, etc.,” and holds the issue a valid one.</p> <p>We think that the precise question was submitted to the voters at the election held on April 29, 1913, and that this contention can not be sustained.</p> <p>. The next and -third ground of objection urged by the plaintiffs to the validity of the bonds is as follows: “That see. 3015 of the Code of Laws of South Carolina, 1912, vol. I, under which said bonds have been voted, provides, among other things, that when said bonds are issued, they shall be turned over to the commissioner of public works for sale, and it is submitted that the city of Orangeburg being now operated under the commission form of government, as provided by law, has no board of commissioners of public works, the said board having been abolished by operation of law upon the adoption of the commission form of government by the city of Orangeburg, and the present city council, under the commission form of government, now in operation, has no authority to issue said bonds or to enter into a contract for the sale of same.”</p> <p>It is admitted that the city of Orangeburg is now operated under the commission form of government, which provides that cities and towns of not less than four thousand inhabitants, nor more than ten thousand inhabitants, may adopt this form of government.</p> <p>The act of the legislature creating this commission form of government makes no provision for commissioners of public works. But, on the contrary, sec. 10 of the act of 1910, 26 Stats. 523; Civil Code 1912, sec. 3080, creating the commission form of government, under which the city of Orangeburg is now operated, provides as follows: “The council shall have, possess, and exercise all executive, legislative, and judicial powers, the duties conferred upon said city or heretofore belonging to it, etc.” Sec. 11 of the same act (Civil Code, sec. 3081), as amended by the act of 1912, sec. 6, 27 Stats. 815, provides as follows: “The executive and administrative powers and duties shall be by council distributed among three departments, of which each of the members of council shall be a superintendent of one, and the assignments or reassignments shall be made by the mayor, or by a vote of the council if they deem it necessary, etc.” It will thus be seen that the act creating the commission form of government and the amendments thereto devolve all the duties and powers of cities, under this form of government, upon the city council, and the executive and administrative powers are to be distributed among three departments. This means all the duties and powers, both executive and administrative, shall be distributed among these three departments. The mayor and each of the councilmen being in charge of one department. If the board of commissioners of public works has been abolished by operation of law, as contended by the plaintiffs, then all the duties and powers exercised by the commissioners of public works under the old form of government are now conferred on the city council under the commission form of government. The act clearly says, “All duties and powers belonging to the city, of every kind, are conferred upon the city council.” The act creating the commission form of government is broad enough and sufficiently comprehensive in its terms to confer upon the city council all the powers and duties appertaining to the city under the old form of government, including the powers and duties and responsibilities of the commissioners of public works. And the present city council of Orange-burg, as successors to the city council under the old form of •government, have full power to take up and complete any enterprise begun by the former council, and I so hold.</p> <p>The fourth and last objection urged against the validity of said bonds is as follows: “That the registration books were opened twenty days before said election, and closed ten days before said election, contrary to the provision of sec. 11 of article II of the Constitution of South Carolina, 1895, which requires that ‘the registration books shall close at least thirty days before an election, during which time transfers and registration shall not be legal.’ All the voters at said election having been registered by the supervisor of registration for the city of Orangeburg within the thirty days immediately preceding said election, and the registration books having been closed ten days before said election instead of thirty days, as required by the Constitution and laws of the vState of South Carolina.”</p> <p>It is true that sec. 11 of article II of the Constitution does provide that the registration books shall be closed thirty days before an election and .that during that time transfers and registration shall not be legal. An inspection of this section of the Constitution clearly shows that the section applies to county and State registration books, and not to municipal registration books. The following section of the Constitution provides as follows: “The General Assembly shall provide for the registration of all voters before any election in municipalities, etc.” (Sec. 12, art. II.) By the act of 1908, 25th statutes, 1026, now sec. 231, vol. I of the Code of L,aws of 1912, the registration law relating to municipalities, was amended, and said amendment provides: “That twenty days prior to any special election to be held, as aforesaid, the books of registration shall be open for the registration of the names of qualified electors therein, and shall remain open for a period of ten days.” This amendment was passed by the legislature pursuant to the power given in sec. 12 of art. II of the Constitution, and there is no conflict between the Constitution and the amending act.</p> <p>But, besides, it is not necessary to discuss this question, as it has been settled by our Supreme Court. The case of Fowler v. Town Council of Fountain Inn, 90 S. C. 354, 73 S. E. 626, decides that the amendment to the existing law relating to muncipal registration, found in 25th statutes, 1026, providing for opening municipal books of registration twenty days before and keeping them open for ten days, does not violate sec. 11 of article II, providing that State books of registration shall not be open for thirty days before any election. Mr. Justice Hydrick, in his opinion, says: “It clearly appears from the context, that is, from the preceding and following sections, that the registration books, mentioned in sec. 11, are the county registration books, in which electors in State and county elections are registered, for the very next section (sec. 12) deals specifically with the registration of electors in municipal elections, and provides: ‘Electors in muncipal elections shall possess the qualifications and be subject to the disqualifications herein prescribed.’ The production of a certificate of registration from the registration officers of the county as an elector at a precinct included in the incorporated city or town in which the voters desire to vote is declared a condition prerequisite to his obtaining a certificate of registration for municipal • elections.”</p> <p>And Mr. Justice Hydrick holds, in reviewing the case of Gunter v. Gayden, 84 S. C. 48, 65 S. E. 948, relied on in this case, as follows: “There is nothing in the opinion in that case (Gunter v. Gayden) which sustains the contention that the provision of the Constitution above quoted from sec. 11 requires, the books of a city or town to be closed thirty days before an election. There being -no provision in the Constitution as to when such books shall be closed, the legislature may fix any time within its discretion.” This case is conclusive upon this point.</p> <p>Having carefully reviewed all the objections urged by the plaintiffs against the election held on the 29th day of April, 1913, and the proceedings had for issuing the bonds in question, I think that none of said objections are well founded, and they should not be sustained by the Court, and I hold that said election and all proceedings were regular, and that said bonds are valid.</p> <p>It is, therefore, ordered, adjudged and decreed, that the prayer of the complaint for an injunction against the issuing of sixty thousand ($60,000.00) dollars of bonds of the city of Orangeburg, for the purpose indicated and set forth in the pleadings be, and the same is hereby, refused, the demurrer to the answer is overruled and the complaint is hereby dismissed.</p> <p>From this decree the plaintiff appealed upon the following exceptions:</p> <p>I. That his Honor erred in holding that the plant proposed to be erected is a single, combination or unit plant, and that there was but a single proposition submitted to the voters at the election held upon the issuing of the bonds in question on the 29th day of April, 1913.</p> <p>The error being that there were two propositions submitted to the voters of the city of Orangeburg on the 29th day of April, 1913, because the petition plainly and unmistakably stated that “the proceeds of said bonds were to be applied solely and exclusively to the establishment and main-. tenance of a waterworks and lighting plant for said city of Orangeburg, etc.,” and the resolution ordering said election stated it was “for the purpose of establishing, maintaining, contsructing and operating a waterworks and electric light plant in the said city of Orangeburg,” — thus undoubtedly submitting two propositions to be voted on as a single question, because a waterworks and electric light plant are unquestionably two plants.</p> <p>II. That his Honor erred in holding that the petition praying for said election upon the question of issuing bonds was the same and precise question set out in the- resolution ordering the election on said bonds.</p> <p>The error being that they were not the same and precise question, for the reason that the petition stated it was “for the purpose of establishing and maintaining a waterworks and lighting plant,” and the resolution ordering said election stated it was “for the purpose of establishing, maintaining, constructing and operating a waterworks and electric light plant in the said city of Orangeburg”- — -a strict construction of section 3015, vol. I, Code of Laws of South Carolina, 1912, being thereby violated.</p> <p>III. That his Honor erred in holding that the present city council of Orangeburg, under the commission form of government, are successors to the city council under the old form of government, with full power to take up and complete any enterprise begun by the former council.</p> <p>The error being that there is no distinct provision for the city council under the commission form of government to sell municipal bonds for the erection of a waterworks, etc., as is provided under section 3015, Code of Caws of South Carolina, 1912, vol. I.</p> <p>IV. That his Honor erred in holding that the opening of the registration books twenty days before said election and closing them ten days before said election was not in contravention of section 11 of article II of the Constitution of South Carolina, 1895.</p> <p>The error being that said registration books should have been closed at least thirty days before said election, during which time transfers and registration 'should not have been allowed — which is the main provision of said section 11 of article II.</p> <p>cites: 83 S. C. 136, 462, 464, 546; 93 S. C. 447; 1 Code of Laws 1912, sec. 3015; Const., art. II, sec. 11.</p>

<p>Before Memminger, J., Camden, November, 1913.</p> <p>Action by Mary Motley Eller, Dona Motley Laughlin, Ellen Motley Parish, John D. Motley, S. D. Motley, Bar-den Motley and Berry Motley, plaintiffs, against Wm. J. Motley and Earle Bowen, defendants, to recover possession of’ real property. From a judgment for plaintiffs, defendants appeal on exceptions to the charge of the Circuit Judge, which was as follows:</p> <p>“Now, the claim is made, as you will see, on the part of the plaintiffs here as widow and children of Daniel Motley, that Daniel Motley owned this land, and it is undisputed from the evidence, whatever title Daniel Motley acquired to the land was acquired under the Hogan plat, — this old paper they claim he went in possession of the land under claim of right and color of title, color of title by the Hogan plat claiming as his own under this plat, and remaining there in possession of it, using it for the ordinary purposes for which such land is available, openly, notoriously and in hostility to the claim of others for the period of more than ten years, and that he so acquired title to it, to such land as designated in this plat. Now, if that be so, if he held it that way, then he would have acquired such title to the property, and they claim that he did.</p> <p>The defendants come in on that point and they put in evidence a paper before you — the other paper you saw, torn up looking paper, claimed to be a deed, in which they seek to make it appear that Daniel Motley, got only a life estate in this property, and, of course, this paper upon its face shows, if he got the property under that paper, he would only have acquired a life estate, that when he died, of course that was an end of that estate, and his wife and children could not have acquired any title from him to something which expired when he died.</p> <p>My idea of this case, which 1 charge you as law, that it can not come from the defendant in this case, Wm. J. Motley, to seek to defeat plaintiffs’ title in that way, to avail himself of this as a defense, because from the undisputed evidence in the case, and from his own claim in the case, Wm. J. Motley went in possession of these premises either as a tenant of his brother, Daniel Motley, or as purchaser from Daniel.</p> <p>The law is based upon the principle of public policy, that a tenant can not be heard to contest the title of his landlord, the person under whom he goes in possession. That you’ can readily see is a well founded principle. If .you give work to a man on your premises, a tenant, and you bring suit against him, if he will not get off the land, will not surr render possession to you, it will not do for the man to come in and say, “well, it is true I have no title to the property, still you have no title to the property, — -therefore, I must have the property;” the law does not allow that, does not allow him to contest the landlord’s title; and so, also, one who purchases land from another, he can not come in and cla-im the land he purchased from a man who didn’t have title to convey to him. Founded also on the general principle of public policy. So I do not think, and so charge you that that paper there is available to this defendant, Wm. J. Motley, to defeat the plaintiffs of the right to recover possession of this property, and to recover this property, if otherwise they show their right under the law. So that matter, will not be for consideration before you in that shape, form. The' question before you primarily upon the plaintiffs’ case, is whether the plaintiff, Mrs. Motley Eller; the widow of Daniel Motley, and her children have made out, by the greater weight of the evidence, that Daniel Motley got this paper, went in possession of it under this Hogan plat, claiming it under that plat, as a color of title reasonably in the premises, showing the general description of the premises, and held it by himself or by his tenant undér him for a sufficient length of time, either ten years notoriously, adversely and hostile possession, title by adverse possession, or held it for the period of twenty years by hmself, or by his tenants from which the law would presume a grant. If he so held it for the period of ten years, complete title from which, if proved, possession would be presumed to follow, even although he had not been in actual possession of it. Now, if he has made that out by the greater weight of the evidence, you go to the question of the defense set out in the answer. As you heard from the evidence and argued before you, the plaintiffs here, the widow and children of Daniel Motley, they claim that Wm. J. Motley, the brother of Daniel, went in possession of this place as a tenant of Daniel, and that he paid rent and acknowledged Daniel Motley as his landlord of the premises, and not only did pay that rent during the lifetime of Daniel Motley, but that he paid it after his death, to his widow, in the same way. If that be so, the law is this, that a man does not acquire any title as long as he remains a tenant, and he can not set up adverse holding as against his landlord until he makes actual disclaimer of the tenancy, and assert he is not holding as tenant, but assert he is holding it for himself and against the landlord of the premises under whom he went in possession, and that must be evidenced, under the statute, by a refusal to pay rent. The statute on that point is Code Civil Proc., section 131 (reads same).</p> <p>Therefore, you will see upon the question of alleged tenancy, if the plaintiffs have proved that Wm. J. Motley went in as a tenant, then no title by adverse possession can commence to accrue for his benefit until he asserted he was not a tenant and refused to pay the rent. Now, if after refusal to pay rent, if he went in as tenant, and ten years passed in which he remained in continuous, adverse, open and notorious possession, in hostility to the claim of his' landlord, then he would acquire title by reason of adverse possession. Now, you see under the facts .of this case, that if he paid rent after the death of Daniel, his brother — and it is claimed here he did — that his title by adverse possession along that line could not prevail here because one of the children, the youngest one, was only about 22 years of age, and ten years have not elapsed since that child became twenty-one years of age at the comencement of this action, and the minority of one child on the question of adverse possession inures to the benefit of all, and, therefore, if he paid rent after the death of Daniel and during the minority of one of those children, and ten years not having passed since the child' became twenty-one (21) before this action was commenced —you see it is impossible for ten years to have passed from the time of the refusal to pay rent was before the death of Daniel, why then up to the commencement of this action' — ■ therefore his claim of title by adverse possession on that ground could not prevail here, after his refusal to pay rent —provided, of course, now that you decide he was a tenant and refused to pay rent before the death of Daniel, why then you see ten years would have started to run then at that time, when he refused to pay rent during the lifetime of Daniel, and if it started to run then during the lifetime of Daniel, but didn’t run ten years before Daniel died, leaving minor children, why the fact that these children were minors would not suspend or stop the running of the ten years’ time, so that ten years would continue to run, hav- . ing started during the lifetime of Daniel, and if the evidence show he had held it ten years at the time of refusal to pay rent during the lifetime of Daniel prior to the commencement of this action, notwithstanding the fact there was a minor child whose minority had not ceased ten years prior to the commencement of the action, his title by adverse possession would be good under the law; because although he had ten years, the continuous running of time from the time he refused to pay rent commenced in the lifetime of Daniel and not stopped by reason of the death of Daniel,' leaving minor ■ children. That principle in reference to minority of one child inures for the benefit of all the others, applies, as I have said, to this matter of adverse possession; it does not apply in the case where possession has been held for twenty years, from which the law presumes a grant, but that question can not possibly obtain in this case; and you could find, as plaintiffs have asked me in one of their requests to charge, you could find that it ran against some of the children and not as against some of the children and not as against the others, for the simple reason that the undisputed facts appear that Daniel Motley has only been dead fifteen years, consequently, if the possession of William started twenty years prior to the commencement of this action, why, necessarily, it started during the lifetime of Daniel, and if it ran for ten years from that time on he would get good title by adverse possession, and in fact these minors coming in could not affect the case in one way, shape or form, because necessarily as a matter of inevitable conclusion, from the facts, go back, twenty years back Daniel was alive, and his possession would have commenced during the lifetime of Daniel Motley taking it along ’ the line, claimed in the defense of Wm. Motley, that he didn’t come in possession of that place as tenant at all, but claims he went in there aá purchaser from Daniel, his brother, that he went in there as a purchaser by what is known as parol or verbal contract, bought the property and paid for it. The law on that question is a man does not necessarily have to have a deed, written evidence of title, he may show complete title by parol or verbal agreement where he has taken possession of the property, and used it ordinarily, and has paid the purchase price, and has held it for the period of ten years after he has paid the money.</p> <p>Now, if he went in possession of the property as purchaser from Daniel and paid part of the purchase money, now that ten years would not commence to run until he paid all the purchase money; it would not commence to run from the time he made the contract to purchase, but if after he had paid the last installment of the purchase money, the ten years ran from then on prior to the commencement of this action in which he remained in open, notorious, continuous, adverse possession of the property, claiming it as his own, why, then, his title would become a title as well as if he had gotten a written deed for the property, but such would not commence to run against him, run for his 'benefit until he had paid the last installment of the purchase money. You see the idea there. He claimed he went in as purchaser, and paid the last installment of the purchase money during the lifetime of Daniel Motley. If that be so, gentlemen, and from that time he held it for a period of ten years, holding it openly, notoriously, adversely, in hostility to Daniel Motley, who claimed to be the true owner, then he would have acquired absolute title by adverse possession under that claim. By adverse possession the law means the man uses the property for ordinary purposes for which such property is adapted, and that he uses it in a way that shows to those who would have a claim against it, or to people generally that he is asserting ownership, that he is openly and notoriously holding it, that he is holding it in hostility to any claim of the true owner, and that he holds it continuously as such; that is what is meant by adverse possession in law. So these are questions you haye to decide in this case. This matter of his claim of adverse possession is a matter of affirmative defense) the burden of proving which is upon him to show the material elements going to make up that claim by the greater weight or preponderance of the evidence.</p> <p>Now, then, gentlemen, if you decide that William Motley paid the rent for this property after the death of Daniel Motley, why, then, he can not prevail in this case, and you can not find a verdict in his favor, because one of the children became twenty-one, and his title would not be complete on that line; if you decide he went in as purchaser, but didn’t pay the purchase money, last part of it during the lifetime of Daniel Motley, and that he paid it since the death of Daniel Motley, he can not prevail, the same minority children would come in against his title, holding by adverse possesion under his claim. If you decide he paid the last installment during the lifetime of Daniel Motley and held it continuously, adversely for ten years since that time, on that ground his title would be a good and complete one and would be if you decide, — if he refused to pay rent during the lifetime of Daniel Motley and held it adversefy for ten years from-that time.</p> <p>If you decide in favor of the plaintiff in this case your verdict will be, we find for the plaintiff, — on the question of damages you heard the evidence on that line as to cutting trees, etc.; and if you decide in favor of the plaintiff that he is entitled to recover this land, then the verdict would be, we find for the plaintiff the property described as follows — I take it it would be the property described in the answer of Wm. J. Motley, and would be a sufficient description.</p> <p>cite under 4th exception: 18 A. & E. Enc. of E. 422; 4 Strob. 196; 22 S. C. 451; 26 S. C. 609; under 5th exception: 26 S. C. 608; 11 A. & E. Enc. of L. 440, 441; under 7th exception: 10 A. & E. Enc. of E. 494, 497; 15 S. C. 262; 24 Okla. 472, and note in 20 Am. & Eng. Ann. Cas. 353 and 354.</p> <p>cite as to 7th exception: 21 S. C. 112; 39 S. C. 356, 368; as to 4th and-5th.exceptions: 29 S. C. 377; 1 Strob. 1; 69 S. C. 84; 22 S. C. 133; 5 Rich. 541; 54 S. C. 394; 53 S. C. 216; 48 S. C. 234; 50 S. C. 293; 23 S. C. 100; 95 S. C. 100. Appellants should have presented proposition desired in request to charge: 56 S. C. 126-136; 43 S. C. 206; 51 S. C.' 103; 52 S. C. 438; 54 S. C. 192; 58 S. C. 47; 59 S. -C. 162; 60 S. C. 153; 58 S. C. 94-97.</p>

Before Si-iipp, J., Dillon, August, 1909. Action by Wm. A. Hamilton against W. M. Hamer and J. W. Hamer. From a decree dismissing the complaint, plaintiff appeals. Held: and rightly, that the testimony to change to a mortgage must be clear and convincing. In all cases it is' stated that each case must depend upon the peculiar conditions and circumstances surrounding the parties at the time of the transaction.

<p>Before Prank B. Gary, J., Dillon, December, 1913.</p> <p>Motion by E. Thomas Jackson, as grantee and assignee of alleged property rights formerly belonging to the plaintiff in the action pending in the Court of Common Pleas for Marion county, between Sarah Ann Price, plaintiff, and W. D. B. Hays, W. Thad Bethea and J. B. Gibson, as executors and trustees under the last will and testament of Hugh P. Price, deceased, and Wilbur Monroe Risin, Mary S. Risin, Willie E. Risin and Magnolia Risin, defendants, for leave to revive and continue the action, as successor in interest to the plaintiff, and for leave to file and serve an amended complaint therein. On return to order to show cause why the motion should not be granted, the Circuit Court made the following order:</p> <p>This is a petition to revive an action instituted by Sarah Ann Price against a number of defendants, which action abated by reason of the death of the plaintiff. The application is made by E. Thomas Jackson, who alleges that he is the assignee of Sarah Ann Price and is entitled to have the action revived and continued in his name. The application is resisted principally on the ground that the action was personal to the plaintiff, and is not such action as could be revived or continued in the name of the personal representative of the plaintiff. The attorneys who resist the motion make the following statement concerning the original complaint: “The complaint in this action states two causes of action. The first cause of action really contains two causes of action, to wit:</p> <p>(a) A resulting trust in reference to certain lands; (b) The money demanded for the conversion of the proceeds of two sales of land made by the testator.</p> <p>1. Two thousand four hundred and sixty dollars to A. E. David, November 24, 1893.</p> <p>2. Five hundred and nineteen dollars to O. C. Hayes, November 20, 1895.</p> <p>The second cause of action seeks to set aside the will of the testator, in that it is alleged that he devised a greater part than one-fourth of his property to one W. M. Risin in contravention of section 2487 of the Civil Code.”</p> <p>Possibly the second cause of action does not survive, but it is not necessary at this time to dispose of this question, and I do not undertake to do so.</p> <p>It is clear, however, that the alleged first cause of action does survive, and this is sufficient to continue the case in the name of the personal representative or assignee of the deceased plaintiff, with this reservation, however, that the defendants or any of them have the right to move to strike out any allegations in the complaint that they think should be stricken out for any reason; or to demur to any allegatons of the complaint as not constituting a cause of action. In other words, all of the rights of the defendants under the Code, with reference to settling the issues to be tried, are reversed.</p> <p>It may be that the matter set up in the return is sufficient to defeat the whole cause of action, but this matter goes to the merits of the case rather than the question of whether or not there should be a revival and continuation.</p> <p>It is therefore ordered, adjudged and decreed that the action entitled Sarah Ann Price, plaintiff, against William D. B. Hayes et al., defendants, which heretofore abated by reason of the death of the said plaintiff, be, and the same is, revived and continued in the name of E. Thomas Jackson, as plaintiff, with the right reserved to the defendants or any of them to answer or demur or make any motion in reference to the allegations of the complaint that may appear to them advisable, and with the right to the plaintiff to move to amend the complaint as he may be advised.</p> <p>From this order the defendants appealed on the following exceptions:</p> <p>I. Because, it is respectfully submitted, his Honor erred in reviving the first cause of action herein when it appeared from the return which was not traversed and could not be disputed that after the death of Hugh P. Price, his widow, Sarah Ann Price, elected to accept and not to reject his will, it being submitted that she had the right of election either to accept or reject, and having accepted, her election to accept the same was in lieu of the other rights claimed by her, and she could not be allowed thereafter to retract.</p> <p>II. Because, it is respectfully submitted, his Honor erred in reviving the first cause of action as to the money demand thereof when it appeared from the return which was not traversed and could not be disputed that the statute of limitations had long since run against such demand, and in allowing facts which would not constitute a cause of action to be revived. It is respectfully submitted that his Honor did a vain thing to order an issue to trial when there was established before him a complete defense to each issue.</p> <p>III. Because his Honor erred, it is respectfully submitted, in reviving the first cause of action set up in the complaint, when it appeared from the return which was not traversed, and could not be disputed, that Sarah Ann Price acquiesced in the terms of the will which she was undertaking to set aside by accepting the benefits devised and bequeathed to her at the hands of the trustees therein, whereas, he should have held that such conduct upon her part estopped her from disputing the will of Hugh P. Price in any of its terms.</p> <p>IV. Because his Honor erred, it is respectfully submitted, in reviving the second cause of action, when it appeared not only from the return, but from the petitioner’s moving papers, that Sarah Ann Price died anterior to any decree of Court declaring said will void to any extent upon the ground that the beneficiary thereunder was an illegitimate child, it being submitted that such cause of action is personal-to the wife and legitimate children of the testator, and is nonassignable, and no action based thereon can be revived in favor of the party who could not have maintained such action in the first instance.</p> <p>V. His Honor erred, it is respectfully submitted, in reviving both causes of action, when the return set up matters which if admitted constituted a complete ground for refusing to revive, and the return not having been traversed, although opportunity therefor was given, the Court was in error in not regarding them as admitted, and in refusing to dismiss said suit.</p> <p>submit: That plaintiff was estopped by her election to take under will attacked, and could not maintain the action: 3 Rich. Eq. 281, 300. The second cause of action was ex delicto, and did not survive: 20 S. G. 477; 1 'Cyc. 49, 69. The ric/ht of action was personal to plaintiff: 1 Rich. Eq. 465; 56 S. C. 191.</p> <p>submits: Defenses to action on its merits not to be considered on this motion: 1 Cyc. 112; 42 S. C. 389. Right of property vested in widow on her election, and was assignable: 1 Rich. Eq. 465; 1 Hill Ch. 142; 3 Rich. 164; 93 S. C. 277; 16 S. C. 158, 170, 171; 103 Pa. St. Rép. 89.</p>

<p>Before Spain, J., Lexington, February, 1914.</p> <p>Action by Southern Cotton Oil Company against Bates-burg Cotton Oil Company. From judgment for plaintiff, defendant appeals.</p>

Before Wilson, J., Lexington, September, 1913. The defendant, J. A. Blackwelder, being indicted, and convicted of making an excessive loan of the funds of an incorporated bank, of which he was a director and officer, to another corporation, of which he was also an officer., in violation of Crim. Code, sec. 296, and Civil Code, secs. 2661 and 2662, appeals.. cite: Crim.

Before C. J. Ramage, special Judge, Monck’s Corner, November, 1913. Action by Geo. H. Bradley against Atlantic Coast Bine Railroad Company. From judgment for plaintiff, defendant appeals. The facts are stated in the opinion. submit: 1.

<p>Before Wilson, J., Lexington, February, 1913.</p> <p>Action by C. C. Cooper against 1VI. E. Rutland. From a judgment for plaintiff, defendant appeals on the following exceptions:</p> <p>1. Error in permitting plaintiff to testify that defendant had never offered plaintiff a deed; the error being /hat before plaintiff could maintain an action for breach of the contract for sale of land, he must show complete performance on his [Dart.</p> <p>2. Error in refusing to direct a verdict for defendant on the ground that plaintiff should not be permitted to maintain an action for specific performance of an executory contract until he has fully complied with all that the contract requires him to do; or that he has offered to comply.</p> <p>3. Error in not directing a verdict for defendant on the ground that the remedy of plaintiff is not an action for money had and received for his benefit, but for specific performance of the contract after offer to comply.</p> <p>4. Error in giving plaintiff’s 3d, 4th, 6th and 13th requests as set out in the record for the reason that in an executory contract for the sale of land, neither contracting party has the right to maintain any action thereon until he has fully performed his part of the contract, and the doctrine announced in those requests is inconsistent with this principle.</p> <p>submits: Letter of Nov. 2 Tst should not be construed as a breach of the contract. It was not so treated by the parties, and time was not of the essence of the contract: 26 Ency., p. 73. Failure to remove incumbrances before purchaser’s offer to comply was no breach of contract: 72 S. C. 556, 573.</p> <p>cites: Contract for sale involved agreement to make and tender conveyance, and to remove incumbrances: 6 Rich. Ecp 332; 16 S. C. 384; 14 Pet. 175; 10 R. Ed. 406. Vendor could not declare forfeiture of purchaser’s rights: 81 S. E. 425. Vendee’s 'action for money had and received proper'remedy: 72 S. C. 563; 148 U. S. 352; 37 R. Ed. 478; 2 Smith’s Reading Cases 30; 36 R. R. A. (N. S.) 1220; 30 R. R. A. (N. S.) 809; 91 S. C. 288; 65 S. E. 907; 151 N. C. 168; 64 S. E. 958; 109 Va. 688. Time not of the essence of the contract: 41 S. C. 161; 6 Rich. Eq. 332; 84 S. C. 186; 9 S. C. 268; 61 U. S. 94; 15 R. Ed. 636; 61 U. S. 520; 15 R. Ed. 1009. After receiving partial payment made after stipulated date, vendor should have given reasonable notice of his intention to enforce strict compliance in payment of balance due: 134 U. S. 68; 33 R. Ed. 823; 41 S. C. 161. Duty to remove incumbrances: 72 S. E. 628; 6 Rich. Eq. 332. When vendor repudiates a contract, the vendee need not make tender: 73 S. E. 134; 89 S. C. 537; 105 N. W. 445; 2 R. R. A. (N. S.) 668. The contract was never renewed after breach by vendor on Nov. 21, ipn: 85 S. C. 86, 88;-.26 S. C. 610.</p>

<p>Statutes. Interpretation. Yeto of Item in Appropriation Bill.</p> <p>Const., art. IY, sec. 23, provides that appropriation bills shall specify the objects for which the same are made, and appropriate to them, respectively, their several amounts in distinct items and sections, and if the Governor shall not approve one or more of the items or sections, but shall approve the residue, the bill shall become law as to the residue in like manner as if he had signed it. Held that, ' where a bill appropriating money for the Confederate Infirmary divided the appropriation into several numbered items, and item 3 made an appropriation for salary and wages of officers and employees at the infirmary, according to a specified schedule, the Governor having vetoed such item, and his veto having been sustained by the House of Representatives, there was no appropriation for the salaries and wages of employees of the infirmary.</p>

Before DeVore, J., Edgefield, at chambers, January, 1914. Proceedings for petition for habeas corpus by L. B. Hartley, petitioner, against Leila Blease, alias Hartley, and A. PI. Blease, respondents, requiring them to produce Julian Hartley, an infant, and show the cause of his detention.

<p>Before Spain, J., Bennettsville, February, 1914.</p> <p>Action by The Mobley Company against R. M. McLucas and Effie McLucas. The facts are stated in the opinion.</p> <p>submit: No issues were asked under C. C. Rule 28: 76 S. C. 507. Order proper: 27 S. C. 235; 79 S. C. 269, 427; 69 S. C. 186, and in discretion of Judge: 76 S. C. 507.</p>

Before Spain, J., Conway, October, 1913. Action by Leonora Adine Anderson, as administratrix of Robert Harley Anderson, deceased, against Conway Lumber Company. From judgment for plaintiff, defendant appeals. The facts are stated in the opinion. The former submit: There must be reasonably direct proof that defendant’s negligence was proximate■ cause of the injury:.77 S. W. 67, 70; 84 N. W. 36, 39, 40; 77 N. W. 731; 72 S- C. 398, 404.

Before DeVorE, J., Charleston, February, 1913. Motion to dissolve a warrant of attachment issued in action brought by R. H. Wichman, doing business under the style and trade name of A. Wichman & Son, plaintiff, against J. R. Fox and S. J. Fox. From an order refusing-motion, the defendants appeal.

Before Shipp, J., Newberry, September, 1913. ■ Motion by Bettie Havird, a defendant, to vacate and set aside certain judgments obtained against her by her codefendants in case of Bank of Columbia, plaintiff, against The Havird Company and others, defendants. The motion being refused, Bettie Havird appeals.

Before Rice, J., Florence, April, 1913. Nonsuit in action by R. A. B. Calder against P. J. Maxwell. Plaintiff appeals. The facts are stated in the opinion. submit: The rule of caveat cmptor applies: 27 Cyc. 1723; 2 McC. 382; 2 Bay 169, 170; Const. Rep. 143; 2 Hill-297; 2 Bail. 418; 2 Brev. 45; 26 S. C. 41. Resale: 8 S. C. 1; 17 Cyc. 1259, 1260; Civil Code 3706; 2 Bfev. 180; 2 Bailey 291; 3 Hill 178.

Before Si-iipp, J., Newberry, September, 1913. Action for partition of real property, brought by Viola McLean against B. W. Crouch, Bettie Havird, B. B. Hair and the Bank of Prosperity. Prom a decree confirming the report of the master, Bettie Havird appeals. The report of the master was as follows: “The above entitled matter was referred to me to take testimony and report on all issues of law and fact, with leave to report any special matter.

Before Prince, J., Walhalla, 1913. Accounting by administrator in case of J. T. Patterson, in his own right and as administrator of the estate of Eugenia Patterson, deceased, against James H. Jones, Iber E. Patterson, Clein C. Patterson and Zella E. Patterson. Plaintiff appealed from judgment. The facts are stated' in the opinion.

Before Rice, Laurens, 1913. Action by Mrs. Emma Sullivan against Western Union Telegraph Company. From judgment for plaintiff, the defendant appeals. submit : Secondary evidence of letter not admissible until loss of original, and search therefor shown-: 75 S. C. 346, 77 S. E. 160. Evidence must show injury as the proximate result of defendant’s negligence: 70 S. C. 418, 72 S. C. 116; 73 S. C. 221; lb. 525; lb. 221. Efficient intervening cause: 96 S. C. 423.

Before Gage, J., Columbia, October, 1912. Two actions by E. McC. Clarkson and S. L. Miller against Supreme Lodge, Knights of Pythias, Insurance Department, tried together. From judgment for plaintiffs, the defendant appeals. The facts are stated in the opinion. cite: Power of association to reclassify risks and change rates: 117 Ind. 489; 3 L. R. A. 409; 121 Eed. 403.

<p>Before SeasE, J., July, 1912, Gaffney.</p> <p>Action by G. W. Spear, as receiver of Greer Filter Manufacturing Company, against Board of Public Works of Gaffney, S. C., and J. H. Lipscomb, D. H. Clary and T. W. Little, constituting the Board of Public Works of Gaffney, 5. C., and Wilkins-Watson Hardware Company. From a judgment in its favor for $1,926.94, the Wilkins-Watson Hardware Company appeals. The facts are stated in the opifiion. The order and acceptance were as follows:</p> <p>“State of South Carolina, County of Cherokee.</p> <p>To the Board of Public Works, Gaffney, S. C.</p> <p>Gentlemen: You will please pay to Wilkins-Watson Hardware Company the sum of two thousand eight hundred and eighty-three and 43-100 ($2,883.43) dollars, and charge the same to the account of Greer Filter Manufacturing Company, withholding the said amount from the sum which you now have on hand, belong to, or coming to, Greer Filter Mfg. Company, and this shall be a full warrant and receipt to your board for the same.</p> <p>Greer Filter Meg. Company,</p> <p>J. B. GrEER, President.</p> <p>Gaffney, S. C., March 11, 1911.”</p> <p>“We acknowledge receipt of the above order, and agree, that when the filtering plant, contracted by the Greer Filter Manufacturing Company, is completed and accepted (and subject to any payment or payments, for which the Board of Public Works may be liable, by reason of the attachment, in the case of Massachusetts Bonding and Insurance Company against James'Boyd Greer and Greer Filter Manufacturing Company), to pay to the Wilkins-Watson Hardware Company, from the balance due the Greer Filter Manufacturing Company, the sum of twenty eight hundred eighty-three and 43-100 ($2,883.43) dollars, if so much shall remain in our hands, as coming to the Greer Filter Manufacturing Company. And, if there be not so much as the above amount, then whatsoever amount that may be remaining in our hands as due the Greer Filter Manufacturing Company, as above stated.</p> <p>J. N. Lipscomb,</p> <p>B. G. Clary,</p> <p>Board of Public Works for the Town of Gaffney.”</p> <p>submit: As to effect of order as assignment: 21 Wall. 447; 74 S. C. 210; 54 S. C. 364; 145 Fed. 966; 180 Fed. 235.</p> <p>submit: The acceptance was conditional: 7 Cyc. 776; 37 S. C. 239; 3 Cush. Mass. 376; 30 Am. Dec. 741; 132 Mass. 340. Distinguishes: 21 Wall. 447; 74 S. C. 210; 54 S. C. 364; 145 Fed. 966; 180 Fed. 235; 5 U. S. L. Ed. 87; Ann. Cases, 1912a, 673; 6 Cyc. 81 (note 12).</p>

Before Shipp, J., Anderson, May, 1913. Action for partition of lands, brought by W. E. Mattison against W. C. Stone. From decree dismissing the complaint, plaintiff appeals. The facts are stated in the opinion on a former appeal, 90 S. C. 146, 72 S. E. 991, and in the following opinion of the Court on this appeal.

Before Spain, J., Marion, November, 1913. Action by Henry I. Ellerbe and others against Marion County Lumber Company. From a judgment for plaintiff, defendant appeals. The facts are stated in the opinion. The charge of the trial Judge was as follows : Mr. Foreman and Gentlemen of the Jury: We have been engaged on this case ever since yesterday afternoon and you have been very patient in listening to the testimony.

Before Memminger, J., Charleston, January, 1914. Action for specific performance of contract for sale of lands, bought by Helen T. Gadsden, against Westshore Investment Company. From a decree for plaintiff, defendant appeals. The facts are stated in.the decree and opinion.

Before SeasE, J., Manning, October, 1913. Action by S. M. Colclough against A. J. Briggs, R. B. Smyth, Mike Powell and E. A. Smyth, as executors of the will of R. R. Briggs, deceased. Erom judgment for plaintiff, defendants appeal. The facts'are stated in the following opinion.

Before F. B. Gary, J., Columbia, May, 1913. Held: upon the motion for a new trial, that the Court having ordered the complaint to be amended so as to bring in as a party defendant the Little Mountain Oil Mill and Fertilizer Company, with an allegation that the C., N. & L. R. R. Co. claimed that the car in which the cottonseed meal referred to in the complaint was loaded, was closed…

Before Gage, J., Columbia, December, 1912. Action by Southern Realty and Inyestment Company against R. C. Keenan. From a judgment for defendant, plaintiffs appeal. The facts are stated in the opinion. cite: As to charge on rules of location: 2 Bay 516; 1 McC. R. 167; 1 Hill R. 12; Harper L. 454; 1 McC. R. 232; 3 McC. C. 223; 67 S. C. 33; 1 McC. C. 584. Adverse possession: Code Civil Proc. 102 to 105. Mixed possession: 1 Cyc. 1130, et seq. cite: As to rules of survey: 4 Ene.

Before Prince, J., Columbia, April, 1914. Petition by the State Company for writ of mandamus against A. W. Jones, Comptroller General, to compel him to -issue a warrant on the State_ treasury for the payment of certain claims. Prom an order dismissing the petition, the petitioner appeals.

Before SeasE, J., Bishopville, Spring term, 1914. Action for recovery of real estate, commenced July 21st, 1909, by J. R. Stokes, F. R. Stokes, J. K. Stokes, F. R. Watford, Francis Rush, Sarah C. Joyner and Priscilla Russal, plaintiff-appellants, against William M. Murray, defendant-respondent. Frances R. Stokes, the wife of J. R. Stokes, and the mother of the other plaintiffs, who claim as her heirs at law, died September 20, 1906. The other facts are stated in the opinion.

Before Shipp, J., Laurens, November, 1913. Action by A. Ross Blakeley, as receiver of State Mutual Fire Ins. Co., against T. M. Bradley. From judgment for plaintiff, defendant appeals. The facts are stated in the opinion. cite: 77 S. C. 187; 15 Fed. Cas. 158, 160. submits: The State Mutual Pire Ins. Co. was organized under Civil Code ipoz, secs, ip12 to ipió, and its charter was amended by Civil Code ipi2, -sec. 2775. Liability of members: 2 Strob. 348.

Before StcasK, J-, Kingstree, November, 1913. Action by Thomas B. Cutter against Mallard Lumber Company. From judgment for plaintiff, the defendant appealed. The charge of the Circuit Judge was follows : Mr. Foreman and Gentlemen of the Jury: You are judges —the sole judges of the credibility of the witnesses, and the force and effect to be given to' their testimony, and the conclusion that you may reach from that testimony.

Before Gage, J., Aiken, October, 1913. Five separate actions by Mrs. Lena Woodward, Mrs. R. G. Munday, H. J. Glovre, Chester L. Lowe and Bertha Keel, against Southern Railway Company. The facts are stated in the opinion. submit: Passenger must take notice of time limit on excursion ticket: 65 S. C. 518; 82 S. C. 485; 62 S. C. 14; 62 Md. 95; 18 Am. & Eng. R)g Cases 310. And is bound thereby: 84 S. C. 175; 5 A. & E. Enc. of L. 613; 28 lb. 177; 63 Md. 106; 61 Miss. 194.

Before Hon. Charles Carroll Simms, special Judge, Bamberg, November; 1913. Action by Mrs. Lula Bessinger and J. G. Bessinger, her husband, against Seaboard Air Line Railway. The facts are stated in the opinion of the Court. From a judgment for plaintiff, defendant appealed upon tihe following exceptions : 1. Because his Honor should have directed a verdict for the defendant as requested by defendant, as follows: “II.

Before Spain, J., Marion, January, 1914. Action to recover an undivided interest in lands, and partition the same, brought by R. J. Blackwell against Ella J. Harrelson. Held: That the deed made by C. H. Harrelson to Ella J. Harrelson estopped C. H. Harrelson from setting up any claim to the land in controversy herein.

Before Shipp, J., Spartanburg, April, 1914. Action by J. W. Trout, plaintiff-respondent, against Stanley Burnett, Flavius Burnett, Joyce Burnett, Ruby Burnett and Eleanor Burnett, defendants-respondents, and Iris Wilson, Ralph McMillan and Nannie McMillan, defendants-appellants.

Before Gage, J., Bamberg, November, 1913. Action by Alma Folk against Seaboard Air Line- Railway to recover damages for injuries received at a railroad crossing. From a judgment for plaintiff, defendant appeals. The pleadings, facts and the first exception to the charge to the jury are stated in the opinion of the Court. The charge on Circuit was as follows: There are four main questions for you to decide in this case.

Before Sease, J., Spartanburg, Summer term, 1913. Action by Atlanta & Charlotte Air Bine Railway and Southern Railway Company, lessee, plaintiffs, against Spartanburg Railway, Gas & Electric Company, defendants. From judgment for defendant, plaintiffs appeal.

<p>Before Bowman, J'., Newberry, March, 1914.</p> <p>Action by Robert C. Sligh against Annie G. Sligh, Bernice J. Sligh, Geo. B. Sligh, Robt. E. Sligh, Gussie E. Sligh, Clarence F. Sligh, Thomas P. Sligh, J. W. Eominick and G. F. Sligh. From a decree in favor o.f' the plaintiff,, the defendants appeal. The facts are stated in the opinion.</p> <p>cites: 11 Rich. Eq. 393; 95 S. C. 368; 16 S. C. 303.</p> <p>cite: Trust executed: 2 Rich. Eq. 53; 61 S. C. 249. Pee conditional: 1 Rich. Eq. 404; 76 S. C. 487; 67 S. C. 307; 91 S. C. 184; 67 S. C. 131; 67 S. C. 118.</p>

<p>Before SeasE, J., Sumter, November, 1913.</p> <p>Action by Julia V. Beck against Northwestern Railroad Company of South Carolina. From decree in favor of plaintiff, granting an injunction against the defendant, the latter appeals.</p> <p>The first, fourth, fifth and ninth exceptions to the charge were as follows:</p> <p>First. There was error in permitting the plaintiff tó withdraw and annul the stipulation in writing dated June first, 1911, entered into and signed between the respective counsel in this cause, no sufficient legal reason having been given by the plaintiff or her counsel for the withdrawal of such stipulation, or for asking to rescind the same, and not be bound thereby, and, not requiring the plaintiff to abide by such stipulation and prejudicial to the defendant, in that it was deprived of the right to introduce in evidence without proof of the execution and delivery of the same, papers, books and documents referred to in such stipulation, and to have the full benefit of the same, and particularly the agreement therein referred to, made by J. Adger Smyth and others with the Eutawville Railroad Company, dated the ■ — ——- day of-, 1887, and recorded in the clerk’s office for Sumter county, S. C., on April 28th, 1891, in Book FFF, page 29,</p> <p>Fourth. The defendant requested his Honor to charge the jury as follows: “(a) I charge you that Mrs. Beck cannot take any higher right than J. Adger Smyth could have, were he suing.” This request was refused, and there was error in so doing. Both plaintiff and defendant claim from J. Adger Smyth and as no other claim was made or established by the plaintiff, save through him, it was error to refuse said request to charge, the same embodying a correct proposition of law.</p> <p>Fifth. The defendant requested the Court to charge as follows:</p> <p>“Second. Mrs. Beck claims title through J. Adger Smyth, and if J. Adger Smyth signed the agreement which you heard read from the book of record (FFF, p. 29) by counsel for the defendant, or if Mr. Smyth authorized that paper to be signed or ratified it, if it was signed by some one else using his name, then the defendant could remove obstructions and take away the soil from one hundred feet on each side of its track.” This request was refused, and there was error in such refusal to charge, for that the agreement referred to in such request having been put in evidence and such agreement being to the effect that the said J. Adger Smyth (and the others who signed it) “will grant, release and convey to said Comparer (referring to the Eutawville Railroad Company, the predecessor in interest of the defendant in its grantor by intermediate conveyances) “a piece or strip of land for a roadway extending in breadth one hundred feet on each side from the center of main track of said proposed railroad, and in length from the point where the proposed line of said railroad enters the said tract of land of us and each of us, to the point where it leaves the same, with such further land as may be sufficient and necessary for stations, for freight, passengers, wood and water.” And it having appeared that the railroad was built in pursuance and contemplation of such agreement, and having taken possession of the land and laid its track upon it,, the Eutawville Railroad Company and the defendant, as its successor in interest, acquired title in fee to the said parcel of land, in equity, perfected by possession and use, and had a right to dig up the soil and remove it and had the right to remove obstructions from it.</p> <p>Ninth. Under the plaintiff’s fourth and fifth requests his Honor charged the jury as follows :</p> <p>“ ‘4th. Under the law in this State, if a person or corporation enters into the possession of land under a verbal contract to purchase the same, then his possession is notice to subsequent purchasers for válue, although no contract to purchase be recorded; but where the contract or instrument depended upon by the purchaser who goes into possession is in writing, and the same is not'recorded, then his possession is not notice to subsequent purchasers of whatever might be conveyed by this unrecorded instrument.’ I charge you that. That is the decision of the Supreme Court, announced by the Associate Justice Woods. ‘But in this connection, I will also charge you that the Eutawville Railroad Company, the predecessor of the defendant company, having had a right by its charter to acquire sufficient rights of way by the different means then provided by law, then the physical presence of the defendant company would be notice to a purchaser of the land over which the road ran, of the right of the defendant company to such width of roadway as it was actually occupying, or as was actually necessary for the conduct of said road.’</p> <p>“I charge you that, gentlemen. Of course, these are various and different propositions of law, and it may seem that some of the propositions are inconsistent, but they are not intended to be — not intended to be so construed by me, and I direct you to take my whole charge as a whole and not one single proposition, because all the law cannot be stated in one ■proposition.</p> <p>“5th. It is for the jury to say what is the width of the right of way of which the plaintiff had actual notice, or by the exercise of due diligence should have had, and she would be an innocent purchaser of all that portion now claimed by the defendant company as a right of way, of which she had no actual notice, if the jury finds that there is any.' I charge you that, gentlemen.”</p> <p>There was error in so charging the jury, for by such charges the right of the defendant was limited to such width of roadway as it was actually occupying, or as was actually necessary for the conduct of its road, — whereas the presence and occupation of the railroad track was in itself notice of all the rights which the defendant company had, and it was not sought to be proven in the case as to the exact width that was actually necessary for the conduct of the road, and it was proven that under its charter, it was entitled to seventy-five feet on each side of the center of its track, and that as successor in interest of the Eutawville Railroad Company, under its agreement with J. Adger Smyth, former owner of the land, it had one hundred feet on each side of the center of the track.</p> <p>cite: As to agreements of counsel: 55 S. C. 563; 103 U. S. 40; 1 Hill L. 32. Omission of seal to deed: 38 S. C. 417; 34 S. C. 401; 42 S. C. 138; 26 S. C. 160. Notice of right of zvay to subsequent purchaser: 72 S- C. 235; 67 S. C. 377. Remedy for compensation: 89 S. C. 555.</p> <p>distinguish 72 S. C. 332. Effect of defective record; not notice: 22 S. C. 332; 79 S.' C. 357.</p>

Before Wilson, J., Anderson, March, 1914. Action by Ross Mitchell and J. R. Cox, partners in trade, as Mitchell-Cox Cumber Co., plaintiffs-appellants, against Greenville, Spartanburg and Anderson Railway Company, defendant-respondent. Rrom an order sustaining a demurrer, and dismissing the complaint, the plaintiffs appeal.

Before Shipp, J., Union, February, 1914. Action on bonds and mortgage by Union Building & Loan Association. The master reported that there was due plaintiff by defendant, on the bonds and mortgage set out in the complaint, on the 19th day of January, 1914, the sum of $567.32 for principal and interest, and the further sum of $56.73 for attorney’s fee, making a total indebtedness at that date of $624.05, for which the plaintiff was entitled to judgment and foreclosure.

Before Bowman, J., Greenville, June, 1913. Three actions, the first by W. N. Miller, the second by Earle Stone Miller, and the third by Thomas W. Miller, against the Southern Express Company. B'rom judgments in favor of W. N. Miller for $115, Earle Stone Miller for $75, and Thomas W. Miller for $75, the defendant appealed.

Before C. J. RamaGE, special Judge, St. George, October, 1913. Action to recover possession of real estate, brought by John Henry Gallishaw, against G. W. Jackson. From a judgment for defendant, plaintiff appeals. The facts and questions raised by the exceptions are stated in the opinion submits: Execution intended to provide proper evidence of sale: 67 S. C. 538. Prima facie effect of deed: 15 S. C. 192.

<p>Before Prince, J., Union, May, 1913.</p> <p>Action by W. D. Arthur, H. K. Smith, Jos. E. Eowler. and Commercial and Farmers National Bank, of Baltimore, Md.; National State Bank,- of Richmond, Va.; J. H. Wilkes & Co., King Plardware Co., The Hill & Griffith Co., and Mrs. Amanda McNeace, creditors proving claims, plaintiffs, of whom Commercial and Farmers National-Bank, of Baltimore, Md.; National State Bank, of Richmond, Va.; J. H. Wilkes & Co., King Hardware Co., The Plill & Griffith Co., and Mrs. Amanda McNeace, are appellants, against The Peoples Bank, of Union, S. C.; B. F. Arthur, Wm. H. Gist, and H. B. O’Shields, as receivers of said bank; and J. C. Sheppard, G. E. Tucker, Jesse Comer, Mrs. Susan Tinsley, W. M. Hagood, H. K. Smith, R. S. Foster, R. E. Palmer, Miss Sue R. Jeter, W. E. Colton, W. M. Garner, Clarence B. Smith, J. D. Arthur, Mrs. Alice Arthur, Mrs. Mary E. Moore, J. E. Beattie, F. M. Farr, Rev. C. C. Vaughn, B. G. Wilburn, Exchange Bank and Trust Co., P. F. Foster, W. R. Walker, W. W. Colton, Mrs. Fannie M. Duncan, Thomas McNally, W. F. Gilliam, W. G. W. Going, Mrs. Lelia McNeace, Mrs. Mary G. Holmes, Rev. W. A. Massabeau, Mrs. Jeannette Wallace, Dr. J. H. Hamilton, Miss.Sarah Ida Knight, Mrs. Sallie F. Wilson, Mrs. S. J. Webber, and Mrs. Sallie R. Walker, stockholders of said bank who have paid their assessments, defendants-respondents.</p> <p>' From an order allowing the stockholders named to participate in distribution of assets, the general creditors of the defendant bank appeal. The facts are stated in the opinion rendered by Mr. Justice Watts.</p> <p>cite: As to liability of stockholders: Const. 1895, art. IX, sec. 18;'Code of Laws 1912, sec. 2660; 53 S. C. 584 and 590; 57 S. C. 53; 43 S. C. 80, and note in 41 L. R. A. (N. S-) 981, 998 and 1000, 1002, on the rights and remedies of a creditor who is also a stockholder of an insolvent corporation, as affected by his own statutory liability. The assets of an insolvent corporation are trust funds solely for the benefit of creditors, ■and no part should be paid over to stockholders until all debts have been fully paid: 26 A: and E. Enc. of Law 1007, 1015; 45 L. R. A. 863. The liability of the stockholders is primary: 53 S. C. 590; 22 S. C. 292; 33 S. C. 530; 81 S. C. 495; 79 S. C. 1; 91 S. C. 163; 24 A. and E. Ann. Cas. 1912c, 398. Subrogation not permitted in favor of one ultimately or really liable for debt discharged: 27 A. and E. Enc. of L. (2d ed.) 204, 205, 258; 37 Cyc. 374; 34 S. C. 377; 71 Am. St. Rep. 36; 45 L. R. A. 863; 52 S. C. 467, 468; 58 S. C. 179; 68 S. C. 439; 1 DeS. 409; 24 Enc. of L. (1st ed.) 226; Speer’s Eq. 41; 142 Cal. 147.</p> <p>citing: As to liability of stockholders: 176 U. S. 521; 44 L. Ed. 571; Ann Cas. 1913a, 378, and note, pp. 384, 385; 10 A. and E. Ann. Cas. 774; Ann Cas. 1912b, 488, 491, and note; Ann Cas. 1913a, 719, and note, p. 723; 5 A. and E. Ann. Cas. 314; 55 S. C. 79; 66 S. C. 491; 197 U. S. 154; 3 A. and E. Ann. Cas. 500; 5 A. and E. Ann. Cas. 665; 19 E. R. A. (N. S.) 428; 66 R. R. A. 971, and note 973; 38 Mise. 606; 78 N. Y. Supp. 79; Civil Code of California, sec. 322, and cases there cited. As to stockholder’s right to subrogation: 77 S. C. 305 and 310, and note thereto in 22 E. R. A. (N. S.) 442; 81 S. C. 244; Cook on Corp., sec. 218; 23 L. R. A. (N. S.) 190.</p>

Before Spain, J., Lexington, February, 1914. Action by Clara V. Padgett, as administratrix of the estate of Lewis H. Padgett, deceased, against Seaboard Air Line Railway. From a judgment for plaintiff, • defendant appeals. The facts are stated in the opinion. The exception to the charge on the defense of assumption of risks was as follows: XII.

Before SfasE, J„ Bishopville, December, 1913. Action by Edward B. Tisdale, B. B. Epps and Heath-Massey-Morrow Co., citizens and residents of Lee county, to enjoin Robert B. Scarborough and Hartwell G. Cross-well, claiming to be public cotton seed weighers at Bishop-ville, S. C., from interfering with the plaintiffs in the conduct of their business. From an order granting a permanent injunction, the defendants appeal.

<p>Before DeVorE, J., Marion, 1913.</p> <p>Action by Charles A. Anderson, trading as Anderson & Co., against Merchants Grocery Company, to recover purchase price of goods sold. From a judgment for the actual value of goods sold, plaintiff appeals. The facts are stated in the opinion.</p> <p>The fourth and fifth paragraphs of the second defense were as follows:</p> <p>“4. That defendant signed said order, relying upon, and in consequence of, the representations then made to it by the plaintiff, which representations were: that the goods mentioned in said order were pure, unfermented, clarified fruit juices from the fruits named in said order and up to the standard of the best goods of that kind on the market; that said representations were false when made, and were known to plaintiff to be false, and were made by him with intent to deceive and defraud the defendant, and for the purpose of inducing defendant to sign said 'order.</p> <p>“5. That in pretended compliance with said order the plaintiff shipped to the defendant certain goods; that said goods were not as represented by the plaintiff, but on the contrary, ■ were artifically flavored and colored liquids, not made from the fruits named, and of little or no value; that soon after the arrival of said goods defendant ascertained the character of the same, and thereupon immediately declined to accept the same, and has not accepted the same and duly notified plaintiff thereof.”</p> <p>The charge of the trial Judge was as follows:</p> <p>“Mr. Foreman and Gentlemen of the Jury: The plaintiff brings his suit against the defendant to recover for the goods described in the complaint to the amount of the purchase price. The sum and substance of the complaint is that he not only sold, but delivered these goods to the defendant, and the defendant has failed to pay for them, and he is entitled to his money. That is about the sum and substance of the complaint.</p> <p>“The defendant comes into Court and says: ‘You are not entitled to the money from those goods for two reasons: they didn’t come up to the guarantee in your written contract, and, besides that, at the time I entered into that contract and as an inducement for entering into it, you made false representations to me, knowing them to be false, and it amounted to fraud.’ That is about the sum and substance of the issue made by the pleadings.</p> <p>“I charge you as a matter of law that under this contract that this is what the plaintiff undertook to guarantee. He guaranteed, ‘that our Mezzo is not subject to any special .tax, either State, county or internal revenue.’ He guarantees that. Is that true? If that is a fact that part of the guarantee is carried out, that it is not subject to any special tax, either State, county or internal revenue tax. ‘We further guarantee that these goods are nonalcoholic and not adulterated or misbranded within the meaning of the Food and Drug Act.’ Are they nonalcoholic? If they are not he stood up to that part of his guarantee. If they are not adulterated or misbranded within the meaning of the Food and Drug Act — he doesn’t say they are not adulterated, but that they are not adulterated in the meaning of the Food and Drug Act, that is, that they would pass under the Food and Drug Act — if that is so, he stood up to that part of his guarantee. Now, you have got to ascertain from the evidence on that particular part of it whether that is so or not. ,No testimony that has been sworn to here, that you have heard, but which has been ruled out must be considered by you. In other words, no testimony in reference to the guarantee, except these things he undertook to guarantee in writing, is competent. If the defendant undertook to prove that he undertook to guarantee something else except what was in writing that would be incompetent, and you should not consider such testimony. So, the testimony on the guarantee must have reference to what he did guarantee in writing and just what I have read; and all • other testimony that you have heard that came out before I could rule on it must be disregarded as far as the guarantee is concerned.</p> <p>“Now, as to the question of misrepresentation at the time the contract was signed, I charge you, at the outset, that fraud vitiates all contracts — fraud and false representations, if they are made in such a way as to induce a person to act upon them and cause damage to him.</p> <p>“I charge you further, that the undisputed evidence in this case is that these goods were shipped and delivered to the defendant. I think the evidence is undisputed on that point, that these goods were shipped and the defendant got in possession of them, they were delivered to him. Up to that point the contract was complete. The defendant has the right to inspect those goods, to see whether or not they either came up to the guarantee or to see whether the goods were as. represented. If there had been no misrepresentation about them the defendant has the right to have a reasonable time in which to ascertain that fact, but it was his duty to do so in a reasonable time, and if he found out that there had been misrepresentation, or that the goods did not come up to the guarantee, it was his duty after he ascertained that fact, either as to fraud or misrepresentation, to notify the plaintiff, and either return the goods or to offer to return them. In that same connection I charge you that one person can not take the goods of another and dispose of them, put it beyond his power to return the goods, and avail himself of the defense of fraud and relieve himself from paying for those goods. If a person buys goods and accepts them and disposes of them and he has not been damaged in any way, either by fraud or otherwise, by the party who sold them to him, he must pay for those goods. If, on the other hand, the defendant within a reasonable time, notified the plaintiff that the goods did not come up to the guarantee, or that he had made false representations and the goods were not what they were represented to be, if he did that in a reasonable time and offered to return the goods, or to tender the goods to be returned, then his defense would have availed. This is more a question of fact than it is a question of law, anyway. That is about all the law I see in the case.</p> <p>“If the defendant fails to show he has been damaged on account of misrepresentation and fraud, although he had not returned the goods or offered to return the goods, he would still be liable for what the goods were really worth, the actual value of the goods. He couldn’t wipe out the contract where he had kept the goods. If the goods are of any value at all he must pay for them, the value of the goods he kept; and if he has sold them and has accounts against the parties he had sold them to- open on his books and relying on those accounts against those parties, he would have to pay for these goods to the extent he has disposed of them, whether he has been paid by his customers or not.</p> <p>“I think it is my duty, also, to say to you, that if the defendant in this case did not know that — as he claimed, that the goods did not come up to the representation — that he didn’t know that until after his customers got in possession of them and his customers refused to pay for them, and he, after he ascertained that fact, if he did ascertain it, notified the plaintiff in a reasonable time, the defense of fraud would be available, if you consider there was a fraud, to reduce the amount of the plaintiff’s claim to the actual value of the goods, what they were reasonably worth. So, those are all questions of fact for you, and you must confine your inquiry to that. Did the'defendant in this case make any effort to collect for the goods he sold? What is the evidence on that? Did the defendant, within a reasonable time after he ascertained what he claims to be a defect in the goods, as set forth in his answer, did he in a reasonable time after he ascertained that, notify the plaintiff? All those are questions of fact for you to answer. I can not answer them.</p> <p>“That is about all the law I see in the case. If you conclude that the plaintiff is entitled to win, say we find for the plaintiff so many dollars, writing it out in words and not in figures, and sign your name as foreman.</p> <p>“The plaintiff asks for judgment in the sum of one hundred and fifty-one dollars and twenty cents. Now, if you think he is entitled to win in this case, whatever amount you conclude he is entitled to recover, just sa}'" we find for the plaintiff so many dollars, writing it out in words. If you conclude from the evidence applicable to the law as I have given it to you'that he is entitled to recover the full amount, say we find for the plaintiff the sum of $151.20, writing it out in words and not in figures.</p> <p>“If, on the other hand, you are satisfied from the testimony in this case that he is not entitled to recover the full amount, then say we find for the plaintiff whatever amount you think he is entitled to recover.</p> <p>“It is my duty to say to you that I do not think under any .view of this case that you can bring any verdict for the defendant straight out. It has got to be for the plaintiff for some amount, and that amount depends on what view you take of this evidence. I will take the risk of saying that you can not find for the defendant in this case under the case as made. So whatever verdict you conclude as proper write it on the back of this complaint and sign your name as foreman.”</p> <p>The exceptions were as follows :</p> <p>1. Because his Honor erred, it is respectfully submitted, in allowing the witness, Charles A. Anderson, over plaintiff’s objection, to answer the question, “Were the goods you shipped the Merchants Grocery Company pure, unfermented, clarified fruit juice?” It is respectfully submitted that this was error for the reason that, his Honor having stated that the question was submitted solely in support of the defense of fraud, no testimony should have been received in support of the defense of fraud, for the reasons stated in plaintiff’s ground of objection, to wit: that no actionable fraud had been alleged in defendant’s answer, in that there was no allegation of a tender of a return of the goods nor was any damage alleged on account of the alleged fraud of plaintiff.</p> <p>2. Because his Honor erred in allowing, over plaintiff’s objection, the following testimony of L. C. Lawrence:</p> <p>Q. Please state in your own way the circumstances connected with your signing of the order set forth in the corn-plaintiff? A. Mr. Walter came in the office and showed these samples to me, samples of this Mezzo. I asked him what the composition of-it was and he said— (Plaintiff objects to any testimony that tends to vary the written order.) Q. State what representations were made by this man to you. (Objected to. Objection overruled. Exception noted.) A. He represented this to be pure, clarified, unfermented juice from fruits; that it was the same class of stuff as AVelch’s Grape Juice. I had a long conversation with him, and told him if it was anything on the order of the low grade of drinks they had around here I wouldn’t have it; I wouldn’t give him five cents a barrel for it. He said that he guaranteed it was the same class of stuff as Welch’s Grape Juice, only cheaper, and he would guarantee it to be the same stuff. (Plaintiff objects to the above answer, and moves that it be stricken from the record.)</p> <p>The Court: You can strike out what he guaranteed, but not what he said about it being pure, unfermented, clarified juice of fruits. (Exception noted.)</p> <p>It is respectfully submitted that this testimony should have been excluded, in that it tended to add to, vary and contradict the written order on which this action was básed, and the said testimony should not have been received in support of the defense of fraud, in that no actionable fraud had been alleged in defendant’s answer, as there was no allegation of a tender of a return of the goods nor was any damage alleged on account of the alleged fraud of plaintiff.</p> <p>3. Because his Honor erred in allowing, over plaintiff’s objection, the following testimony from the witness, H. W. Little:</p> <p>Q. Did you hear the conversation that took place between Mr. Walter and Mr. Lawrence? A. Yes, sir. Q. What representations did Mr. Walter make? (Plaintiff objects on grounds before stated. Objection overruled. Exception noted.) Q. Proceed, Mr. Little. A. Pie said that they handled nothing but high class soda fountain goods, and said the goods were pure, unfermented, clarified fruit juice, made from juice from pure fruit.</p> <p>It is Respectfully submitted that this testimony should have been excluded, in that it tended to vary, add to and enlarge the written order on which suit was brought, and the testimony could not properly have been received to show fraud, for the reason that defendant had alleged no actionable fraud in his answer in that there was no allegation of a tender of a return of the goods nor was there any allegation of damage from plaintiff’s alleged fraud.</p> <p>4. Plis Honor erred in admitting in testimony the letter of defendant to plaintiff, marked Exhibit “C,” for the reason that said letter had solely to do with the alleged breach of warranty, which the Court had excluded from the case, and hence plaintiff could not be affected by any tender of a return of the goods on account of a breach of warranty of which defendant had no right to complain, under the ruling of the Court, his Honor having ruled that the letter was admitted solely to show what purported to be a tender back of the goods.</p> <p>5. Plis Honor erred in not directing a verdict for the plaintiff on plaintiff’s motion, for the reasons therein stated, to wit: in that the undisputed testimony showed that defendant had sold all the goods for yvhich suit was brought, and held open accounts on his books against the persons to whom he had sold the goods, which amounted to an adoption of the contract and a waiver of any fraud.</p> <p>6. His Honor erred in the following charge to the jury:</p> <p>“I charge you as a matter of law that under this contract that this is what the plaintiff undertook to guarantee. He guaranteed, ‘that our Mezzo is not subject to any special tax, either State, county or internal revenue.’ He guarantees that. Is that true? If that is a fact that part of the guarantee is carried out; that it is not subject to any special tax, either State, county or internal revenue tax. ‘We further guarantee that these goods are nonalcoholic and not adulterated or misbranded, within the meaning of the Pood and Drug Act.’ Are they nonalcoholic? If they are not he stood up to that part of his guarantee. If they are not adulterated or misbranded within the meaning of the Pood and Drug Act — he doesn’t say they are not adulterated, but that they are not adulterated in the meaning of the Food and Drug Act, that is, that they would pass under the Pood and Drug Act — if that is so, he stood up to that part of his guarantee. Now, jrou have got to ascertain from the evidence on that particular part of it whether that is so or not. No testimony that has been sworn to here, that you' have heard, but has been ruled out, must be considered by you. In other words, no testimony in reference to the guarantee except these things he undertook to guarantee in writing, is competent. If the defendant undertook to prove that he undertook to guarantee something else except what was in writing, that would be incompetent, and you should not consider such testimony. So, the testimony on the guarantee must have reference to what he did guarantee in writing and just what I have read; and all other testimony that you have heard that came out before Í could rule on it, you must disregard as far as the guarantee is concerned.”</p> <p>This charge was erroneous, for the following reasons: (1) Because a breach of any guarantee on the points stated in this charge would be no defense in this case; (2) in giving the defendant the benefit of a defense he had not set up; (3) in charging that the evidence must show that the guarantee mentioned in the charge had been made good or performed; whereas, even if a breach of such guarantees was a defense on-which defendant was entitled to rely, it was error to place the burden of proving a performance on plaintiff, when as a matter of law the burden would be on defendant to show a failure in such guarantee; (4) in placing the burden of proving that the stated guarantee had been made good on plaintiff; (S) in making plaintiff’s recovery dependent upon proof which he was not as a matter of law required to make.</p> <p>7. His Honor erred in charging the jury as follows:</p> <p>If, on the other hand, the defendant within a reasonable time notified the plaintiff that the goods did not come up to the guarantee, or that he had made false representations and the goods were not what they were represented to be, if he did that in a reasonable time and offered to return the goods, or to tender the goods to be returned, then his defense would have availed.</p> <p>This charge was erroneous in the following respects: (1) In that it caused the jury to suppose that a breach of a guarantee would be sufficient ground for the rescission of the contract; (2) in instructing the jury that a mere breach of a guarantee would warrant the defendant in returning the goods and rescinding the contract; (3) in instructing the jury that the defendant would be relieved of liability by merely giving a notice to plaintiff that the goods did not come up to the guarantee or the representations and offering to return the goods without proof of the tcuth of such facts ; (4) in that such charge was a charge on the facts, in violation of art. V, sec. 26 of the Constitution of this State, in stating to the jury what acts by defendant would make out his defense or constitute fraud.</p> <p>8. His Honor erred in charging the jury as follows:</p> <p>“If the defendant fails to show he has been damaged on account of misrepresentations and fraud, although he has not returned the goods, or offered to return the goods, he would still be liable for what the goods were really worth, the actual value of the goods. He couldn’t wipe out the contract where he had kept the goods. If the goods are of any value at all he must pay for them, the value of the goods he kept.”</p> <p>This charge was erroneous, in that it created the impression on the jury that even though defendant had not been damaged by the alleged fraud of' plaintiff and had not returned or offered to return the goods he would only be required to pay the actual and not the contract price o£ the goods.</p> <p>9. His Honor erred in refusing to charge plaintiff’s third request to charge, which was as follows:</p> <p>“I charge you that the defense of breach of warranty can not be considered by you in this case, for the reason that the written order upon which suit is based, the execution of which is admitted, contains warranties, and the warranty upon which defendant places reliance is not one of them, the rule being that when certain things are expressly warranted in a written contract of sale any other warranty except those stated is precluded.”</p> <p>It is respectfully submitted that the propositions of law in said request were sound, and the refusal to so charge was prejudicial to plaintiff, in that it permitted the jury to consider breaches of warranty which were not in issue in the case, the issue of warranty made by defendant’s answer having been already withdrawn from the jury by other portions of the charge and by the rulings of his Honor. The said refusal to charge was also prejudicial, because it permitted the jury to consider the breach of warranty set up in defendant’s answer after it had properly been eliminated from the case.</p> <p>10. His Honor erred in submitting to the jury the issue of breach of guarantee or warranty when there was no such issue before the Court.</p> <p>cites: Objection to testimony in support of defense of fraud: 56 S. C. 513; 61 S. C. 455. Issue of fraud not raised by pleadings: 78 S. C. 482. Breach of warranty not ground for rescission of contract: 37 S. C. 7; 2 Rich. 40. Breach of warranty not jAeaded: 35 Cjrc. 368; Pom. Code Rem. (4th ed.), sec. 709. Only the warranties in the written contract can be shown: 1 McC. 219; 1 Hill 383; Cheves 186; 81 S. C. 1.16; 85 S. C. 493. Fraud which does not result in damage not actionable: 78 S. C. 486; 40 S. C. 114; 43 S. C. 257; 74 S. C. 206.</p> <p>explains and differentiates : 78 S. C. 482; 62 S. C. 42. Cites: 15 R. R. A. 89; 85 S. C. 486; 2 Hill 313; 59 S. C. 588; 74 S. C. 202; 43 S. C. 257, differentiated.</p>

Before Seask, J., Sumter, November, 1913. Action by Susan A. Williams and E. W. Williams, her husband, 'against Atlantic Coast Fine Railroad Company. From judgment for plaintiff, defendant appeals. The charge of the Circuit Judge was as follows: Mr. Foreman and Gentlemen of the Jury: You are the judges of the credibility of the witnesses, and the force and effect to be given to their testimony.

<p>Before Prince, J., Columbia, February, 1914.</p> <p>Action by Caroline S. Gibbes, J. Wilson Gibbes, Sarah E. David, Jennie G. Gibbes and Robert W. Gibbes against James E. Hunter, Caroline Nathalie Hunter, James E. Hunter, Jr., and the Bank of Columbia. From a decree, the defendant, the Bank of Columbia, and the plaintiff, J. Wilson Gibbes, both appeal. The facts are stated in the opinion.</p> <p>cite: Homestead has reference to the physical state of the property rather than the nature and quality of the title: 24 S. C. 36. Lands defined: 1 Nott & McC. 463; 208 Pa. St.’392. Homestead cannot be assigned out of .an undivided interest in real estate: 26 S. C. 230; 28 S. C. 133; 32 S. C. 454. The claimant must have a right to possession: 47 S. C. 301; 26 S. C. 18; 87 N. C. 79. Sale of remainder under execution: 82 S. C. 137; 27 S. C. 162; 23 S. C. 104. The several remaindermen and life tenant cannot each have a homestead in the same land at the same time: 20 S. E. 736; 26 E. R. A. 814. Right does not attach until homestead has been set off and recorded: Const., art. IH, sec. 28; 24 S. C. 37.</p> <p>The latter cite: Constitution, 1868, art. II, sec. 32; 2 S. C. 232; 21 S. C. 127, 133, 137. Amendment of 1880: 17 Stats. 320. Constitutional provisions construed. Legislature merely to pass laws to enforce the constitutional provisions, by providing method of assignment: 21 S. C. 379. Assignment not essential to right: 20 S. C. 248; 26 S. C. 1; 32 S. C. 266. Nor is homestead dependent on a right to present possession in severalty: 2 DeS. 430; 16 S. C. 330; 47 S. C. 305; 24 S. C. 35; 54 S. C. 579; 51 S. C. 100; 21 S. C. 379. Difficulty in assigning does not defeat right: 14 S. C. 454; 26 S. C. 229; 28 S. C. 133; 32 S. C. 170. Where there is a right of homestead in land worth less than $1,000.00 it cannot be levied upon and sold under execution: 32 S. C. 266; 37 S. C. 118; 73 S. C. 329; 46 S. C. 70; 26 S. C. 1. The right to homestead precedes the assignment. Partition only sustained where the parties are entitled to possession: 29 S. C. 370; 51 S'. C. 208; 56. S. C. 304, distinguished. The property designated by Gibbes in i8p8 then became fixed as his homestead: 37 S. C. 102, 118, 119; 51 S. C. 100.</p>

<p>Before C. J. Ramage, special Judge, St. Matthews, November, 1913.</p> <p>Action by J. H. Howell against Atlantic' Coast Line R. R. Co. Erom a judgment for plaintiff, defendant appeals. The facts are stated in the opinion.</p> <p>submit: Alleged statement of conductor was hearsay and incompetent: 52 S. C. 309. Sufficiency of evidence was for the trial Court on motion to direct verdict for defendant: 109 U. S. 478; 27 R. Ed. 1003; 164 U. S. 301; 41 R. Ed. 442; 179 Ú. S. 658; 45 L. Ed. 361; 232 U. S. 248. Federal Bmployers’ Liability Act creates the cause of action in favor of employee: 257 U. S. 145; 57 R. Ed. 456, and repealed all State laws on the subject: 223 U. S. 156; 57 E. Ed. 327; 226 U. S. 570; 57 R. Ed. 355; 227 U. S. 59; 57 R. Ed. 417; 228 U. S. 702; 57 R. Ed. 1031; 229 U. S. 156; 57- R. Ed. 1129; 229 U. S. 146 and 156; 57 E. Ed. 1125; 229 U. S. 157; 57 R. Ed. 1129; 207 Fed. 311. The limitation of time in Federal statute bars action: 70 S. C. 254; 226 U. S. 570; 57 R. Ed. 355; 229 U.'S. 156; 57 E. Ed. 1129.</p>

Before Spain, J., Edgefield, March, 1914. Action by W. E. Prescott against Southern Railway Company. From a judgment for plaintiff, defendant appeals. The facts are stated in the opinion of the Court. submits: Proof must show negligence alleged, even if unnecessarily specified by plaintiff: 50 S. C. 49; 51 S. E. 650; 45 S. C. 278; 89 Atl. 769; Wigmore Ev., sec. 2487; 90 S. C. 86.

<p>Carrier aito Passenger. Duty to Assist Passenger to Alight.</p> <p>1. Discharging Passengers at Destination. — Duty to Awaken Sleeting Passenger. — Where a passenger, when paying his fare, told the conductor that he was very tired and probably would not be awake when the train reached his destination at 4 o’clock in the morning, and requested the conductor to see that he was awake, which the conductor promised to do, the company was liable for the conductor’s failure to awaken him, by reason whereof he was carried several miles beyond the station and compelled to walk back, it not being a case where the passenger was attempting' to convert an ordinary coach into a sleeping apartment, but merely a case where he was afraid he would be overcome by sleep involuntarily on account of his physical condition, and it is the duty of a conductor to render assistance to a passenger in order that he may alight from the train at the proper time when his physical condition renders such assistance necessary and the conductor has knowledge of such fact.</p> <p>2. Where a conductor' has notice that a passenger on a day coach is wearied, and liable to be overcome by sleep, the conductor’s promise to awaken him, if he should be asleep on arrival of the car at his destination, in order that he might then leave the car, is incidental to his duty to render assistance to passengers, and within the scope of his employment.</p> <p>3. A railway company is liable to a passenger for damages arising from his being negligently carried beyond his destination, where its servant and conductor had notice that the passenger would probably need assistance to awaken him at time he should leave the train, and after promising such assistance, failed to render same.</p> <p>Messrs. Justices Watts and Gage, dissenting.</p>

Before SeasE, J., Columbia, March, 1913. Action for libel brought by E. O. Black against The State Company. The complaint is set out in opinion on former appeal, in 93 S. C. 467, 77 S. E. 51, which see, in connection with the opinion on this hearing, for statement of facts.

Before Spain, J., St. Matthews, May, 1913. Action by Eastover Mule & Horse Company against Atlantic Coast Rine Railroad Company. From judgment for plaintiff, defendant appeals. The facts are stated in the opinion. submit: Amount of verdict not supported by testimony.

Before Hon. F. B. Gary and Prince, JJ., Winnsboro, April and September, 1913. Two separate actions brought by the Southern National Bank against Farmington Corporation and others, for foreclosure of mortgages, and asking an accounting.

Before Shipp, J., Newberry, November, 1913. Action by W. C. Clough against Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. The facts are stated in the opinion. submit: Brror to admit'testimony as to the telephone conversation with defendant’s office: 55 S. W. 495, 6. L. R. A. (N. S.) 1180.

<p>Before Hon. C. J. Ramage. special Judge,,Monck’s Corner, November, 1913.</p> <p>Action by G. Rittenberg against the Atlantic Coast Line Railroad Company.' From judgment for plaintiff, defendant appeals.</p> <p>The following is the correspondence referred to in the opinion:</p> <p>St. Stephens, S. C., March 20, 1912,</p> <p>Mr. J. C. Murchison, Supt., Charleston, S. C.</p> <p>Dear Sir: I expect to close down my mill in a few days after I get out a few more cars of stuff, and expect will close for a few months until I start up again and while I will not have any one there to light the lamp would like for you to have my siding spiked down for that length of time, until I start up again. Will advise you when I move out the last few cars from there.</p> <p>Yours respect., G. Rittenberg.</p> <p>Charleston, S. C., March 23, 1912.</p> <p>Mr. G. Rittenberg, St. Stephens, S. C.</p> <p>Dear Sir: Your letter of the 20th received. If you expect to discontinue operating your spur track for several months. I would prefer taking out the switch and frog rather than to spike the switch, down. I would be glad to know about when you will be ready to discontinue using it, and about how many months before you will want it again.</p> <p>Yours truly, . J. C. Murchison, Superintendent.</p> <p>St. Stephens, S. C, 6-8-’12.</p> <p>Mr. J. C. Murchison, Supt., Charleston, S. C.</p> <p>Dear Sir: By your request yesterday I called on Mr. G. Rittenberg relative to the spur track at south end of Santee trestle. He tells me that he will want to use track again in about a month, more or less, and that he does not want track taken out, says he will write you relative to the matter.</p> <p>Very resp’y, W. R. Wilder, Sr., Agent.</p> <p>Charleston, S. C., June 12, 1912.</p> <p>Mr. G. Rittenberg, St. Stephens, S. C.</p> <p>Dear Sir: I will be obliged if you will write me at once how much more business you expect to ship from the spur track near Santee Swamp during the next twelve months. If you do not expect to ship very much business from this point during that time I want to arrange to take the track out at once.</p> <p>Yours truly, J. C. Murchison, Superintendent.</p> <p>. St. Stephens, S. C., 6-26-’12.</p> <p>Mr. J. C. Murchison, Supt., Charleston, S. C.</p> <p>Dear Sir: Regard the switch light at my mill. I have arranged with Mr. T. H. Goekliar, section master at that place, to keep light lighted at my switch. Hope this will prove satisfactory. I got about 25 cars of timber at my mill yard that I am trying to dispose of at any time.</p> <p>Yours respect., G. Rittenberg.</p> <p>Charleston, S. C., June 27, 1912.</p> <p>Mr. G. Rittenlierg, St. Stephens, S. C.</p> <p>Dear Sir: Your letter of the 26th inst. received. I note you claim to have 25 cars of lumber at your siding to ship. Please advise how long it will take you to ship this lumber. As we have not handled sufficient business from your siding to justify keeping it in, it will be necessary to discontinue it unless we have some positive assurance that there will be enough business offered to keep it in operation.</p> <p>Kindly let me hear from you as soon as possible.</p> <p>Yours truly, J. C. Murci-iison, Superintendent.</p> <p>New York, 8-8-’12.</p> <p>Mr. J. C. Murchison, Supt., Charleston, S. C.</p> <p>Dear Sir: Yours of 7-31.st, was forwarded to me here. Now regard to the spur track. Will say I cannot see how you can take it out after I spent so much to put it in, as I said before I am trying to make a deal to sell out all my lumber what I got on yard of which it is about 20 to 25 cars, and again I give option to a party to sell the entire track of timber mill machinery and co. and if I do make that deal' the parties will certainly make use of the track to mfging and ship lumber, therefore must ask you to look into this, matter and not put me out that way right now.</p> <p>Yours resjiect, G. Rittenberg.</p> <p>Charleston, S. C., August 10, 1912.</p> <p>Mr. G. Rittenberg, St. Stephens, S. C.</p> <p>Dear Sir: Your letter from New York received this morning. As there has been no business moving from the siding put in for your sawmill, we, of course, cannot maintain the track without sufficient business offering to maintain it,, and I would be glad if you would let me know before August 30th what we may expect in the way of business from your track during the next six months, and I will then let you know whether or not.the business will justify keepr ing the track in.</p> <p>Yours truly, ' J. C. Murchison, Superintendent.</p> <p>Sidetrack Near St. Stephens, S. C.</p> <p>Charleston, S. C., Oct. 4, 1912.</p> <p>Mr. G. Rittenberg, St. Stephens, S. C.</p> <p>Dear Sir: I am advised by our Mr. Wilder, Agent St. Stephens, that you will have no more business to move from this siding and that track can be taken up at any time. This, is to advise that track will be taken out on November 10th, and this will serve as notice according to the terms of agreement.</p> <p>Yours truly, J. -C. Murchison, Superintendent.</p> <p>The following is the agreement put in evidence in the. case, referred to in the opinion:</p> <p>First. That it will furnish all necessary switches, rails,, spikes, fastenings, and other metal material, and will proceed as soon as reasonably practicable to do,' at the expense of the second party, the work necessary to lay said rails and construct said track, after the second party shall have prepared the roadbed therefor.</p> <p>Second. That it will thereafter deliver cars consigned tO' the party of .the second part at the junction of said track with its main track, and will accept from said party of the second part cars loaded by him as hereinafter provided, for movement over its lines to destinations or to connections. The railroad company shall have the right to move its. engines, cars, and machinery over said spur track to reach industries located thereon or reached thereby without any liability to reduce the rental agreed to be páid by the second party hereunder, and, to that end, to extend this spur track or connect there with other spurs.</p> <p>The party of the second part covenants and agrees:</p> <p>Fourth. That it will grade and prepare the -roadbed for said side or spur track, in manner satisfactory to the railroad company, and will furnish and deliver on said roadbed all necessary cross and switch ties and labor laying track; and, further, that he will maintain said side or spur track in condition satisfactory to the railroad company, after the same shall have been constructed' as aforesaid.</p> <p>Fifth. That the railroad company shall hot be liable as a common carrier, nor as a bailee, for any property loaded into any car on said side or spur track, until said car is attached or coupled to the engine or train by which it is to be moved from said side or spur track toward its destination, or until a bill of lading shall have been issued to the party of the second part therefor, and that until said car is so attached or coupled up, or^until said bill of lading is issued, the said car and its contents shall be deemed and held to be in possession of the party of the second part, ás far as liability is concerned. That said party of the second part further agrees that all shipments consigned to him for delivery on said side or spur track shall be deemed to have been fully and completely delivered as soon as the car or cars containing such shipment shall have been placed on said side or spur track, and detached from the engine or train on which it was moved, and that said railroad company shall thereupon be fully and completely relieved of any further liability therefor, either as common carrier or bailee.</p> <p>Sixth. That the privileges hereby granted as to shipping and receiving goods and merchandise, from or on said side or spur track, shall not extend to any other person or persons than the party of the second part hereto; provided, however, the said'railroad company may extend and grant such privileges to other parties under the terms and conditions set forth, but not to such extent or to such number of persons as will intérfere with the rights of the party of the second part, or impair the utility of the said side or spur track for his proper purposes, as herein set out.</p> <p>Seventh. That said party of the second part further covenants and agrees with the said railroad company that he will promptly load and unload at his own proper cost and expense any and all cars that may be moved to and upon and from the said side or spur track for his use, or consigned to or by him, and all said cars, including tank cars, shall be subject to car service rules; and that he will promptly pay all such car service charges as may accrue to the said railroad company for any undue or improper detention of said cars; and that he will not claim or attempt to collect penalties for failure to deliver freight to furnish cars for loading or for failure to promptly transport any freight which may be shipped by or to him, provided such deliveries or movements of freights are performed with due diligence by the railroad company; and that all such cars placed upon said side or spur track shall be returned to the said railroad company in the same condition as when delivered; and, in the event of the destruction of or injury or damage to any such cars while on the said side or spur track, the said party of the second part will make good and pay to the railroad company all loss or damage occasioned by such destruction or injury, unless said party of the second part shall show and prove that the said destruction, damage, or injury resulted from the negligence of the said railroad company or its agents or employees in the lawful discharge of their duties.</p> <p>Eighth. That from and after the construction of said side or spur track he will ship and receive over the line of railroad controlled and operated by the said railroad company all goods delivered by him or received by him to and from points reached by the line of railroad of the said railroad company, and its connecting lines or roads, provided that the rates or freight charges of the said railroad company shall not be higher than the lawful rates over other transportation companies for like goods to and from such points, and that reasonably prompt service and delivery is made.</p> <p>Ninth. That he will promptly load and unload at his own proper cost and expense all cars placed on said side or spur track in accordance with the rules and regulations of the Southeastern Demurrage Bureau subject to demurrage charges thereby provided, and that he will return all such cars as may be placed thereon in as good order and condition as when placed there, and that he will promptly pay to the railroad company all damages sustained by such cars which are in any way due to the acts of commission or omission of said party of the second part, his agents, servants, or employees.</p> <p>Tenth. It is distinctly covenanted and agreed that, inasmuch as the second party desires for his convenience to use the premises leased, notwithstanding the proximity of railroad tracks, engines, and machinery thereto, and the operation of trains in the vicinity and the risk of fire on account thereof, and on account of the situation of the spur track and environments, any and all risks of fire to any property at any time upon or contiguous to said spur track, is assumed by the second party, and the second party hereby releases the said first party from all claims for damages arising or resulting from fire communicated to any improvements located or placed on or contiguous to said spur track, whether caused by locomotives, cars, engines, or machinery, or the operation thereof, or extending thereto from any fire on the property of the party'of the first part, and the second party agrees to indemnify the 'first party, and hold it harmless from and against all claims and demands of every nature on account of injury or damage to, or loss of, any property of any nature whatsoever upon or -contiguous to said spur track, or which may be stored thereon, which may be occasioned by, grow out of, or be incident to the operation of. locomotives, trains or other machinery on said leased premises or in the vicinity thereof, or which may be caused by or grow out of any other fire upon the property of the party of the first part, whether leased or not, and which may extend to the premises herein leased, saving and excepting such injury, loss, or damage as may be directly occasioned by the gross negligence of the first party.</p> <p>Eleventh. That the title in the rails, spikes, fastenings, and other appliances, furnished by the railroad company, shall be and remain in the said railroad company, and that-said appliances shall not be or become fixtures upon the real estate whereon said spur is built.</p> <p>Twelfth. That the said railroad company shall be released and discharged from and shall not be liable for damages to stock of the party of the second part, .which may be injured •or killed on or contiguous to said side or spur track; that he will and does hereby assume the duty of keeping the roadbed and right of way of said side or spur track clean and •clear of combustible and inflammable materials.</p> <p>Thirteenth. It is mutually covenanted and agreed that this •contract shall remain and be in force for the space of one year from date hereof, provided there is in the meantime no violation or breach of any of the stipulations on the part of the said party of the second part; that at the end of the said period of one year, if this contract shall then be in force and effect under its terms and stipulations, it may be renewed and extended by the party of the second part for another period of one year, upon the same terms, conditions and stipulations as are herein contained upon the party of th'e second part, giving to the railroad company, at least 30 days before the expiration of said one year, written notice of his intention and desire for such renewal and extension, and in such event, and upon such written notice being given, this contract shall be renewed, extended, and continued for a second period of one year; provided, however, that the party of the second part shall be in successful operation and business at the end of the said first period of one year, when the said written notice shall be given, and provided that the amount of freight shipped, to and from said sidetrack, for the account of the party of the second part, shall in the opinion of the said railroad company be sufficient to justify such extension and renewal of this contract and the maintenance of the said side or spur track, and continue in force thereafter and until 30 days’ written notice shall be given by either the said railroad company or the party of the second part to the other of its desire to terminate and end the same, and upon such written notice then so given this contract, shall terminate and be at an end.</p> <p>Fourteenth. That the said railway company shall have the right, privilege, and power to cancel, annul, determine, and put an end to this agreement upon 30 days’ notice in writing to the party of the second part, and same shall be likewise cancelled, in the event of the failure of the said party of the second part to keep and perform any of the covenants, conditions, agreements, and stipulations, herein contained, on its part to be kept and performed.</p> <p>Fifteenth. That in consideration of the construction and operation of said side or spur track as aforesaid he will, and hereby does, waive any and all right to collect any penalty or penalties upon said railroad company by law or order of any corporation or railway commission, in event of failure to deliver, or for delay, or any other cause, and agree that he will not demand or collect any such penalty or penalties in connection with any business originating on or delivered on said side or spur track.</p> <p>Sixteenth. And the said party of the second part expressly ' covenants with the first party he will at his own proper cost and expense, provide, build and furnish and at all times hereafter during the continuance and existence of this contract maintain and keep in good repair such suitable and proper crossings as may be necessary for the intersection of said side or spur track hereinbefore mentioned with the track of any other railroad company or of any corporation, company, person, or persons having and operating a railroad track or of any public road or street which the said side or spur track may cross; such crossings to be built, constructed and maintained in manner satisfactory to and approved by the railroad company.</p> <p>Seventeenth. That he will from time to time and at all times during the continuance of this lease, and the term hereby granted, pay to the first party, whenever or as soon as demanded by it, any and all taxes or assessments of every kind whatsoever imposed, or levied upon the said track, their value and use, whether State, county, or municipal.</p> <p>Eighteenth. It is further mutually covenanted and agreed that the said party of the second part will take care of, light, clean, and put up and take down each day all switch lights that may be necessary on account of the aforesaid .siding-the party of the first part to furnish the necessary and. required switch lights, oil, wicks, etc.</p> <p>submit: Letters were part of contract, and extended its terms before date of fire, and cite: 34 S. C. 301; 92 S. C. 95. Duty of Court to construe the letters: 61 S. C. 276; 96 S. C. 14; 96 S. C. 74; 92 S. C. 95.</p>

<p>Before Memminger, J., November, 1913, Greenville.</p> <p>Rehearing of issues on account of mistake of counsel in preparation of case.</p>

Before Mauldin, J., Greenville, August, 1914. From a judgment on conviction for murder, the defendant appeals. The facts are stated in the opinion. submits: Where the testimony as to circumstances under, which a confession was made is conflicting, it must be submitted to, and passed upon by, the jury: 1 Strob. E. 378; 36 S. C. 534; 54 S. C. 174; 13 S. C. 395; 47 Ga. 572; 84 Ga. 613; Underhill on Criminal Evidence 126.

Before Hon. C. J. Ramage, Columbia, special Judge, October, 1914. The defendant-respondent, F. S. Terry, was tried and convicted before Magistrate H. F. Buechel, of Richland county, with the violation of section 75S of the Criminal Code, in two separate cases, one charging the unlawful sale of game fish, jackfish, and the other with unlawful sale of game fish, bream, in Richland county, on the 9th of April, 1914, and was sentenced to pay a fine of twenty dollars in each case.