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certificates of stock, or that the
contract might be continued at
pleasure by mutual consent upon

terms as theretofore, is
ambiguous; and in determining
whether the holder of this stock
is a creditor or stockholder, parol
testimony as to the previous col-
loquium, and previous writings
which led up to the contract;
and a subsequent writing show-
ing the construction given the
contract by the parties, held ad-
missible in evidence. Herndon
v. Wardlaw, 84 S. E. 112, 100 S.

C. 1.
8. Code, sec. 4106, requires a mort-

gage of crops to describe or
mention the lands whereon the
crops are to be raised, in order
that the record may constitute
notice to subsequent purchasers
for value. Kimbrell v. Mills of
Young, 84 S. E. 996, 100 S. C.

413.
9. A reference to “my crops” in a

mortgage is not a compliance
with the provisions of Civil
Code, sec. 4106, requiring the
lands whereon the crops are to
be raised to be described or

mentioned. Id.
10. Under Civ. Code 1912, sec. 4106,

providing that no mortgage on
any crop crops shall be
good and effective to convey to
the mortgagee any interest there-
in, unless the land whereon such
crops are to be raised shall be
described or mentioned in said
mortgage, which said mortgage,
when so taken and indexed or
recorded

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or

mortgage, while the evident pur-
pose of the statute was to re-
quire its identification with rea-

sonable certainty. Id.
11. TI words "described" and

"mentioned,” used in Civil Code
1912, sec. 4106, are not syno-
nyms; and where a mortgage on
crops mentions by reference the
lands whereon the crops are to
be raised without describing
such lands, the mortgage is not
void as in violation of said stat-
ute. Livingston v. S. A. L. Ry.,
84 S. E. 303, 100 S. C. 18.

MORTGAGE OF CROPS.

See Mortgages, supra.

Kimbrell
v. Mills & Young Co., 84 S. E.
996, 100 S. C. 443; Livingston v.
S. A. L. Ry., 84 S. E. 303, 100
S. C. 18.

MUNICIPAL BONDS.

as required by law,
shall constitute a lien upon the
crops therein described in pref-
erence to all subsequent mort-
gages, where a third person exe-
cuted to plaintiff a chattel mort-
gage upon "all my crops of cot-
ton, etc., and all other crops of
whatever character now planted

1. Where a petition by freeholders

Under Civil Code 1912, section
3015, prayed for an election on
the question of the issuance of
bonds for the construction alone
of waterworks and sewerage
systems, and the town council
ordered an election on the ques-
tion of issuing such bonds for
the construction and mainte-
nance of such systems, and it
appeared, after à vote in favor
of such issuance, that the cost
of construction would probably
consume the entire proceeds of
the hond issue, the variance be-
tween the petition and submis-
sion did not affect the validity
of the bonds as a debt of the
corporation, and the moneys ob-
tained upon the bonds may be
used for the purpose of con-
structing such systems. Connelly
v. Beason, 84 S. E. 297, 100 S.
C. 74.

was

erroneous.

cars

loading such car under the di-
rection of the defendant's supe-
rior officer, and in its employ,
was injured by a piece of tim-
ber which fell on his foot and
crushed it; the direction of a
verdict for the defendant in an
action to recover damages for
such injury
Camp v. A. & C. A. L. Co., 84

S. E. 825, 100 S. C. 294.
3. Where an employee of consignee

engaged in unloading cars of
coal placed by a railroad com-
pany on a spur track at an in-
dustrial plant is injured in an
accident occasioned by the cars
from some unexplained cause be-
coming uncoupled and running
off the end of the track, and the
testimony does not tend to sup-
port the allegations that the de-
fendant either negligently pro-
vided defective stop block on the
track, negligently failed to have

on engine pushing same
equipped with proper brakes, or
negligently operated the cars on
the track or did anything which
caused the uncoupling of the
cars,

a nonsuit was properly
granted. Burford v. 5. A. I.

Ry., 84 S. E. 712, 100 S. C. 117.
4. There being testimony that a

street car from which a passen-
ger attempted to alight was mov-
ing very slowly, the question
whether she was negligent in so
attempting, is for the jury. Yar-
borough v. Columbia Ry., Gas &
Electric Co., 84 S. E. 33, 100 S.

C. 33.
5. In an action for the wrongful

killing of plaintiff's intestate,
whether or not defendant's op-
eration of its street car over a
switch at a greater rate of speed
than four miles an hour, in vio-
lation of its own rule, was negli-
gence, was an issue for the jury,
so that instruction that it was
negligence per se was erroneous
as an instruction on the facts.
Kelly v. Columbia Ry, etc. Co.,
84 S. E. 423, 100 S. C. 113.

Beason, 84 S. E. 297, 100 S. C.

74.
2. An incorporated town is a com-

plete entity, and the legislature
having recognized the town of
Batesburg as a municipal cor-
poration in Lexington county,
and that county having voted to
establish dispensary, the county
board of control for Lexington
county may establish a dispen-
sary in that town. Croxton v.
Truesdale, 75 S. C. 418, 56 S. E.
45, followed. Cooner v. Good-

win, 84 S. E. 990, 100 S. C. 428.
3. Where a municipal corporation

has received the benefits of a
transaction, and a claim there-
for is not enforceable at law, be-
cause of some irregularity, the
legislature may compel payment
of such claim out of taxes levied
for that purpose. Farrish-Staf-
ford Co. v. Lexington Co., 84 S.
E. 1002, 100 S. C. 311.

MUTUAL WILLS.

1. To establish a contract for the

making of mutual wills by par-
ties, one of whom is deceased,
the evidence must be definite,
certain, clear and convincing.
Dicks v. Cassels, 84 S. E. 878,
100 S. C. 341.

NAVIGABLE WATERS.

1. A nagivable stream, within Civ.

Code 1912, sec. 2132, is not a
highway, within section 1972,
authorizing an action for inju-
ries caused by defects in a high-
way. Speights v. Colleton Coun-
ty, 84 S. E. 873, 100 S. C. 304.

NEGLIGENCE.

See Master and Servant; Tele-

graphs and Telephones.
1. Where there is evidence to sus-

tain any one of the several spe-
cifications of negligence in the
complaint, the case is for the
jury. Camp v. Atlanta f: C. A.
L. Ry. Co., 84 S. E. 825, 100 S.

C. 294.
2. Where there was evidence that

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7. A common carrier may not stip-

ulate for exemption from liabil-
ity for its negligence. Carter v.
So. Ry. Co., 84 S. E. 999, 100 S.

C. 403.
8. A person being suddenly con-

fronted with a situation which
he honestly believed to be one
of extreme peril, and the appear-
ances such as to justify a per-
son of ordinary prudence and
reason in reaching that conclu-
sion, he would not be guilty of
negligence in acting on such ap-
pearances. Fitzgerald v. Case
Threshing Co., 84 S. E. 991, 100
S. C. 435.

NEW TRIALS.

on

the

1. As regards right to new trial,

evidence held not newly discov-
ered, but cumulative. Yarbor-
ough v. Columbia Ry., Gas of
Electric Co., 84 S. E. 308, 10 S.

C. 32.
2. An order granting new trial be-

cause the verdict was capricious
and against the weight of the
testimony, and because a tele-
gram was not an acceptance of
an offer, held based
ground that the verdict was con-
trary to the weight of the evi-
dence. Watson v. Paschall, 84

suit is properly refused. Mims
V. A. C. L. R. R. Co., 85 S. E.

372, 100 S. C. 375.
6. Where an appeal from an order

granting a new trial in a crimi-
nal case involves only questions
of law, the Court may render
judgment absolute on appeal;
but where questions of fact are
involved, which prevent the entry
of judgment absolute, the ap-
peal will be dismissed. Town of
Denmark v. Corley, 84 S. C. 881,

100 S. C. 433.
7. The power to grant or refuse

a new trial is vested exclusively
in the Circuit Court, and its
order thereon can be impeached
on appeal only for error of law
or abuse of discretion. State v.
Griffin, 84 S. E. 876, 100 S. C.

331.
8. The failure of a prosecuting at-

torney to offer testimony as to
facts known, or which could have
been ascertained by counsel for
defendants, does not warrant the
conclusion that the testimony
was suppressed with a sinister
motive, and was not prejudicial
to defendants. State v. Griffin,
84 S. E. 876, 100 S. C. 331.

NONSUIT.

S. E. 531, 100 S. C. 281..
3. There being testimony as to

facts from which an inference
could be drawn that a bastard
child was likely to become a pub-
lic burden, motion for new trial
was properly refused. State v.
Adams, 84 S. E. 368, 100 S. C.
43.
4. Where a general verdict for
damages is rendered upon issues
as to the commission of both a
trespass and a conversion, and
the issue as to conversion was
erroneously submitted to the
jury, a new trial should be grant-
ed. Saye v. Hill, 84 S. E. 307,

100 S. C. 21.
5. Where practically the same evi-

dence is presented on a second
as upon a former trial, on which
the Supreme Court held it error

See Issues, Supra.
1. Where an inference that a mes-

sage was deliberately changed in
transmission may be drawn from
the evidence, a nonsuit of action
for punitive damages was prop-
erly refused. Painter v. W. U.
Tel. Co., 84 S. E. 293, 100 S. C.

65.
2. Where an employee of consignee

engaged in unloading cars of
coal placed by a railroad com-
pany on a spur track at an in-
dustrial plant is injured in an
accident occasioned by the cars
from some unexplained cause be-
coming uncoupled and running
off the end of the track, and the
testimony does not tend to sup-
port the allegations that the de-
fendant either negligently pro-
vided defective stop block on the

cars,

a

negligently operated the cars on
the track or did anything which
caused the uncoupling of the

nonsuit was properly
granted. Burford v. S. Ā. L.

Ry., 84 S. E. 712, 100 S. C. 177.
3. Where there is evidence on ques-

tions presented in an action, they
are properly submitted to the
jury and nonsuit refused. Moore
v. Marion Cotton Oil Co., 85 S.

E. 52, 100 S. C. 499.
4. Where practically the same evi-

dence is presented on a second
as upon a former trial, on which
the Supreme Court held it error
to grant a nonsuit, this ruling
became the law of the case, and
a renewal of the motion for non-
suit is properly refused. Mims
V. A. C. L. R. R. Co., 85 S. E.

372, 100 S. C. 375.
5. The reading of extracts from

the opinion of the Supreme Court
on a former appeal reversing an
order of nonsuit in refusing a
renewal of such motion on a sec-
ond trial was not a part of his
charge, nor prejudicial to de-

fendant. Id.
6. Where there is testimony tend-

ing to sustain plaintiff's cause of
action a nonsuit is properly re-
fused. Sanders Landreth
Seed Co., 84 S. E. 880, 100 S. C.
389.

V.

NOTICE.

lingv. Rankin, 84 S. E. 1001,

100 S. C. 371.
4. Testimony that a subsequent

purchaser, having only construc-
tive notice of a chattel mortgage
given by a former owner of per-
sonal property, searched the rec-
ords to ascertain whether a third
person, in whose possession the
property was found, had given a
mortgage upon this property, is
irrelevant in an action by the
first mortgagee to recover the
property. Brown & Stribling v.
Rankin, 84 S. E. 1001, 100 S. C.

371.
5. A charge that if the jury found

that the property in dispute had
been sold by plaintiffs to B, and
that they failed to take, and re-
cord, a chattel mortgage from
B, a subsequent purchaser for
value from B would acquire a
good title to such property; held,
erroneous where the uncontra-
dicted evidence shows that the
sale of such property by plain-
tiffs was to A from whom they
took a chattel mortgage, record-
ed in due time. Id.

PARTIES.

1. Code, sec. 4106, requires a mort-

gage of crops to describe or
mention the lands whereon the
crops are to be raised, in order
that the record may constitute
notice to subsequent purchasers
for value. Kimbrell v. Mills &
Young Co., 84 S. E. 996, 100 S.

C. 443.
2. A reference to “my crops” in a

mortgage is not a compliance
with the provisions of Civil Code,

1. Where a Court having jurisdic-

tion of the subject matter has
acquired jurisdiction of the per-
son, it retains such jurisdiction
notwithstanding the subsequent
imprisonment of defendant in
the State prison; and such de-
fendant waives his right to ap-
pear by guardian ad litem, by
neglecting to apply for such ap-
pointment, and after his release
from imprisonment appearing by
counsel and contesting the action
upon its merits. Cobb v. Gar-
lington, 84 S. E. 302, 100 S. C.
51.

PARTITION.

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1. A copartner cannot be convicted

of larceny after breach of trust
committed with reference to the
copartnership property. State v.
Grumbles, 84 S. E. 783, 100 S. C.

238.
2. In a prosecution for breach of

trust with fraudulent intent, evi-
dence held to take to the jury
the question, whether a partner-
ship existed between defendant
and prosecutor which would be

a defense to the prosecution. Id.
3. “Copartnership" is a factitious

relationship between two or more
persons, and its existence depends
on the agreement between the
parties and the agreement may

be established by parol. Id.
4. The statement in Price v. Mid-

dleton g Ravenel, 75 S. C. 108,
55 S. E. 156, as to what consti-
tutes a partnership followed and
approved. Ia.

PAYMENT.

See Accord and Satisfaction.
1. Payments voluntarily made, with

full knowledge of the facts, can-
not be recovered. Gooallett v.
Goodlett, 84 S. E. 414, 100 S. C.
84.

PENALTIES.

PHYSICIANS AND SUR-

GEONS.

1. A passenger suing for a person-

al injury and for the malprac-
tice of the carrier's surgeon, in
treating him for the injuries, has
the burden of proving the in-
compentency of

the surgeon.
Easler v. Columbia Ry., Gas of
Electric Co., 84 S. E. 417, 100 S.

C. 96.
2. A carrier employing a surgeon

to treat gratuitously passengers
sustaining personal injuries is
not liable where the surgeon is
reasonably competent, though he
neglects a passenger sustaining

an injury. Id.
8. Though a carrier must call a

surgeon to treat an injured pas-
senger in a sudden emergency,
it need not do so where the
natural guardian of an infant
injured passenger is present and
dissents from its calling a sur-

geon. Id.

4. Where a carrier injured an in-

fant passenger and refused to
surrender him to his parent, but
insisted on taking him to the car-
rier's surgeon, who treated him,
the carrier was liable for the
malpractice of the surgeon, with-
out reference to its exercise of

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