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other matters shown thereon, as such testimony was material in determining the reliability of the plat as evidence upon the question at issue. A. C. L. R. R. v. Dawes, 84 S. E. 830, 100 S. C. 258.

2. In a suit by plaintiff railroad to recover possession of a part of its right of way, alleged to have been encroached upon by defendant, where defendant offered in evidence a plat of plaintiff's way which had been put in evidence in a previous suit between plaintiff road and another party, and which showed that the right of way by the scale of the plat was less than claimed in suit by the plaintiff road, the explanation of the roadmaster of the road, who was present when the plat was drawn, who had procured data for it, and who knew the purpose for which it was made, that there had been no attempt to draw it to scale was improperly excluded from evidence. Id.

PLEADING.

See Bills and Notes; Damages; Insurance; Master and Servant; Railroads.

1. In action against carrier for wrongful ejection, answer held not objectionable as pleading matters of fact without any conclusion of law therefrom. Ashe v. Southern Ry. Co., 84 S. E. 716, 100 S. C. 187.

2. Where the complaint was verified, plaintiff may, under Code Civ. Proc. 1912, sec. 206, return an unverified answer. Southern Cotton Oil Co. v. Lightsey, 84 S. E. 301, 100 S. C. 40.

3. Code Civ. Proc. 1912, sec. 306, does not authorize a judgment for the debt sued on, on striking out an answer as frivolous. Interstate Chemical Corporation v. Farmington Corporation, 84 S. E. 710, 100 S. C. 196. 4. The Court, on striking out a sham answer, as authorized by Code Civ. Proc. 1912, sec. 202, may render judgment for want of answer. Interstate Chemical

Corporation v. Farmington Corporation, 84 S. E. 710, 100 S. C. 196.

5. Under Code Civ. Proc. 1912, sec. 210, that matter specially pleaded in defendant's answer might have been shown under a general denial did not render proper the striking out of such matter as redundant. Mutual Lumber Co. v. Southern Ry. Co., 84 S. E. 994, 100 S. C. 415.

6. Leave to amend an answer being Iwithin the discretion of the trial Court, an order denying leave will not be reviewed in the absence of manifest error. Marion Co. Lumber Co. v. Hodges, 85 S. E. 49, 100 S. C. 477.

PLEDGES.

1. A written agreement reciting a purchase of preferred stock and agreement by the corporation to pay interest to the holder on the purchase money; and providing that at a time named, either party might, after thirty days' notice, terminate the contract, and thereupon the purchase money should be repaid holder on surrender of the certificates of stock, or that the contract might be continued at pleasure by mutual consent upon same 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 colloquium, and previous writings which led up to the contract; and a subsequent writing showing the construction given the contract by the parties, held admissible in evidence. Herndon v. Wardlaw, 84 S. E. 112, 100 S. C. 1.

PRACTICE.

1. Where a party has neglected to take deposition of a nonresident of this State, it was no abuse of discretion to refuse motion for continuance to allow the nonresident to attend as a witness. Watkins v. S. C. Western Ry., 85 S. E. 377, 100 S. C. 458.

2. The refusal to continue a case for one day to allow the attendance of a witness was not prejudicial where the witness did not appear within the time asked for. Id.

3. Where there is evidence to carry a case to a jury the refusal of motions for nonsuit, and for direction of a verdict, are properly refused. Id. 4. Where the attention of the Judge is not called during the trial to a misstatement in his charge on the issues, the error is waived. Id.

5. A statement of the contentions of the parties as to the facts, is one of issues, and not a charge upon the facts. Id. 6. A variance between the allega

tions of complaint and proof may be cured by amendment under Code Civil Proc., sec. 220, and is not ground for nonsuit, unless the defendant has been mislead thereby. Moore v. Marion Cotton Oil Co. 85 S. E. 52, 100 S. C. 499.

PRINCIPAL AND AGENT. See Brokers; Evidence; Sales. 1. In an action for the price of fertilizers sold by plaintiff to defendant, who relied on agency, a note given by a third person to plaintiff for fertilizers sold by defendant, who received payment, could be shown. Wakefield v. Spoon, 84 S. E. 418, 100 S. C. 100.

PULLMAN EMPLOYEES.

1. A contract declaring that the employee of a Pullman Company knew that it operated its cars on defendant's lines, and that contracts existed and were to be made between the two corporations, whereby the Pullman Company was to save the defendant harmless against liability to plaintiff in such cases as the contract might provide, and whereby the employee ratified such contracts and agreed to hold the Pullman Company harmless for all money the defendant might have to pay her

for injury, and gave the defendant such contracts as a defense to any suit by her, was invalid, and no defense to her action for injury from a collision between defendant's train and a standing Pullman, the floor of which she was scrubbing. Carter v. So. Ry. Co., 84 S. E. 999, 100 S. C. 403.

PUBLIC OFFICERS.

1. Under Const., art. V, sec. 29, and Civil Code, secs. 682, 683, 694, 695 and 722, held, that the Governor had no power to appoint a Circuit solicitor for a time beyond the first general election after a vacancy in the office. State v. Singleton, 84 S. E. 989, 100 S. C. 465.

2. Const., art. V, sec. 29, and Civil Code, secs. 682, 683, 694, 695, and 722, if construed to empower the Governor to appoint a Circuit solicitor for the full unexpired term when a vacancy arises would be invalid. Id. 3. Where the Senate Journal of February 24th, 1912, recited that a certain appointment had been confirmed, and the journal of February 28th recited that such appointment had not yet been sent to the Senate for confirmation, and requested that an appointment to such office be sent as early as possible; and the journal of February 29th recites the consent of the Senate to another appointment to the same office, the entire journal shows clearly that the record of February 24th, showing a confirmation of appointment to that office was a mistake, and in effect corrects the record. State ex rel. Lindsay v. Tollison, 84 S. E. 819, 100 S. C. 165.

RAILROADS.

See Trial.

1. A complaint held not sufficient to sustain a recovery on evidence showing that the cars were uncoupled and thereby broke the barrier at the end of the track and caused the injury, as no negligence in that respect was

alleged. Burford v. Seaboard Air Line Ry., 84 S. E. 712, 100 S. C. 177.

2. Civil Code 1912, sec. 3222, requiring railroad signals at crossings, did not give right of action to a farmer working in a near-by field injured by fright of his horse by a train not giving the signal. Hutto v. Southern Ry. Co., 84 S. E. 719, 100 S. C. 181.

3. Civil Code 1912, sec. 3950, requiring certain cars to be equipped with fenders, held not unconstitutional. Thomas Spartanburg Ry., Gas & Electric Co., 85 S. E. 50, 100 S. C. 478.

V.

See Rights of Way. A. C. L. R. R. Co. v. Dawes, 84 S. E. 830, 100 S. C. 258; Master and Servant, Carter v. So. Ry. Co., 84 S. E. 999, 100 S. C. 403.

RECEIVERS.

1. Domestic creditors of an insolvent foreign corporation held entitled to attach funds due it from citizens of this State, though a receiver had been appointed by the Federal Court in the foreign State. Guimarin v. Southern Life & Trust Co., 84 S. E. 298, 100 S. C. 12. 2. Local creditors may attach funds due a nonresident insolvent, as an ancillary receiver, if appointed, would only take the funds out of the State for administration. Id.

3. Where a construction company became insolvent, and a receiver was appointed, he may continue the work, and persons furnishing labor or material at his request are entitled to be first paid. Guimarin v. Southern Life Ins. Co., 84 S. E. 298, 100 S. C. 12.

RECORDING ACTS. See Notice. Kimbrell v. Mills & Young, 84 S. E. 996, 100 S. C. 443; Brown & Stribling v. Rankin, 84 S. E. 1001, 100 S. C. 371.

REFERENCE.

See Cobb v. Garlington, 84 S. E. 302, 100 S. C. 51; Gibbes Ma

chinery Co. v. Hamilton, 84 S. E. 296, 100 S. C. 59.

REFORMATION OF INSTRU

MENTS.

See Adverse Possession. 1. The Court will reform an instrument where there is mutual mistake or where one of the parties acted under a mistake induced by the fraud, deceit, or imposition of the other. Forrester v. Moon, 84 S. E. 532, 100 S. C. 157.

2. Where a grantee bargained for land actually conveyed by the grantor and acted in good faith and was not responsible for an error of the grantor who possessed capacity, equity would not reform the deed at the suit of the grantor. Forrester v. Moon, 84 S. E. 532, 100 S. C. 157. 3. Where only one of the parties to an instrument was under a mistake, equity will not reform it except under very strong and extraordinary circumstances. Forrester v. Moon, 84 S. E. 532, 100 S. C. 157.

RELIGION.

See State v. Hondros, 84 S. E. 781, 100 S. C. 242.

REMAINDERS.

See Limitation of Actions; Trusts. 1. A deed to one for life with remainder to his children is not void as to the remainder because he has no children at the time; after-born children being necessarily intended. Folk v. Hughes, 84 S. E. 713, 100 S. C.

220.

RES JUDICATA.

See Judgments, Supra.
RENTS.

1. Where a lease provided that the rent should be payable monthly in advance and that the tenant might surrender the premises any time during the month, on securing another tenant to take its place, a tender of a new tenant on the 17th of the month

and of rent only to that date did not discharge the tenant's obligation, as it was liable for the full month's rent. Walker V. Spartanburg Realty Co., 84 S. E. 869, 100 S. C. 308.

2. Where the payment of rent is at issue, testimony that it has been paid by a third party is relevant. Williams v. Columbia Mills Co., 85 S. E. 160, 100 S. C. 363.

3. Right to rents, after judicial sale of premises. Ex parte Owens, 84 S. E. 875, 100 S. C. 324.

RES GESTAE.

1. Whether testimony offered should be admitted as a part of the res gestae or excluded is within the discretion of the Court. Mims v. A. C. L. R. R.` Co., 85 S. E. 372, 100 S. C. 375.

RIGHTS OF WAY.

1. Where by the rules of a railroad company, its station agent was under no duty to report encroachments by abutting owners upon its right of way in a suit by the road to recover possession of part of its right of way encroached upon by defendant, evidence was inadmissible contradicting the agent's denial that he had requested defendant to move her fence off the right of way, and that defendant denied it was misplaced. A. C. L. R. R. Co. v. Dawes, 84 S. E. 830, 100 S. C. 258.

ROADMASTERS.

See Rights of Way, Supra.

SALES.

1. Under contract seller's delivery of goods f. o. b. car to buyer's no-agent station and taking bill of lading therefor, held a delivery to the buyer entitling the seller to an action for the price. Virginia-Carolina Chemical Co. v. Laney, 84 S. E. 424, 100 S. C. 135.

2. In a seller's action for the price of goods sold to be delivered

f. o. b., any difference between the carrier and the buyer was not involved, so that exclusion of evidence thereon was proper. Virginia-Carolina Chemical Co. v. Laney, 84 S. E. 424, 100 S. C. 135.

3. That contract of sale stipulated that purchaser should not have exclusive right to sell held immaterial, where purchaser relied on deceptive representations that he would have such exclusive right. McKinley Music Co. v. Glymph, 84 S. E. 715, 100 S. C.

200.

4. Where goods were shipped to the buyer, seller forwarding bill of lading with draft attached to a bank at the point of delivery, with instructions to surrender the bill upon payment of the draft, title did not pass to the buyer until he received the bill after payment. Sanders v. D. Landreth Seed Co., 84 S. E. 880, 100 S. C. 389.

5. Implied warranty of quality on sale of goods held not to be controlled by mere declarations of the seller in the invoice and bill of lading negativing any responsibility in general for defects in quality. Sanders v. D. Landreth Seed Co., 84 S. E. 880, 100 S. C. 389.

6. Shipper of goods under invoice and bill of lading stating that no claims for damages would be allowed after delivery in good order to the carrier held precluded from setting up that the buyer should have requested a return of a defective lot of seed potatoes, instead of planting them. Sanders v. D. Landreth Seed Co., 84 S. E. 880, 100 S. C. 389.

7. The warranty of quality implied by a sound price cannot be abrogated and the sale rendered one on inspection, by shipment of the goods by the seller under an invoice and bill of lading repudicating any liability on the part of the seller for defects in quality. Sanders v. D. Landreth Seed Co., 84 S. E. 880, 100 S. C. 389.

8. In an action against a seller of seeds for failure of the crop, plaintiff held not to have assumed risks as having voluntarily accepted the goods after examination where he had no right to inspect until after he had purchased. Id.

9. In action against a seller of seeds for failure of the crop, evidence held sufficient to sustain verdict for plaintiff on the implied warranty of soundness raised by a sound price. Sanders v. D. Landreth Seed Co., 84 S. E. 880, 100 S. C. 389. 10. For breach of a contract to sell and deliver goods, the measure of damages is the difference between the contract price and the market price at the time of the breach of contract. Medlin

v. Adams Grain & Provision Co., 84 S. E. 864, 100 S. C. 359. 11. A written agreement reciting a purchase of preferred stock and agreement by the corporation to pay interest to the holder on the purchase money; and providing that at a time named, either party might, after thirty days' notice, terminate the contract, and thereupon the purchase money should be repaid holder on surrender of the certificates of stock, or that the contract might be continued at pleasure by mutual consent upon same 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 colloquium, and previous writings which led up to the contract; and a subsequent writing showing the construction given the contract by the parties, held admissible in evidnce. Herndon v. Wardlaw, 84 S. E. 112, 100 S. C. 1.

SCHOOLS AND SCHOOL
DISTRICTS.

See Mandamus.

1. A county board of education could not enter into a contract with the board of an adjoining county for the joint conduct of

a school, which would bind the successors of the boards to maintain the school. Rouse v. Benton, 84 S. E. 533, 100 S. C. 150.

SEARCHES AND SEIZURES. 1. Under Criminal Code 1912, sec. 699, providing a forfeiture of goods exposed for sale on Sunday, forfeiture of cigars worth $14.15 held not in violation of Const. U. S., amend. 4, securing against unreasonable searches and seizures. State v. Hondros, 84 S. E. 781, 100 S. C. 242.

STATUTES.

For statutes relating to particular subjects, see the various specific topics.

1. Civil Code 1912, sec. 3950, as to the equipment of cars with fenders, is not based upon arbitrary classification, within Const., art. III, sec. 34, subd. 9. Thomas V. Spartanburg Ry., Gas & Electric Co., 85 S. E. 50, 100 S. C. 478.

See Mortgages on Crops. Livingston v. S. A. L. Ry., 84 S. E. 303, 100 S. C. 18.

STREET RAILWAYS.

1. In an action for the wrongful killing of plaintiff's intestate, whether or not defendant's operation of its street car over a switch at a greater rate of speed than four miles an hour, in violation of its own rule, was negligence, 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., Gas & Electric Co., 84 S. E. 423, 100 S. C. 113.

2. A street railroad's violation of an ordinance fixing a rate of speed over switches is negligence per se. Kelly v. Columbia Ry., Gas & Electric Co., 84 S. E. 423, 100 S. C. 113.

3. In determining whether a general law can be made applicable, the Court will indulge every reasonable presumption and solve

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