any showing of an abuse of the
trial Court's discretion, is not
appealable. Glover v. Heyward
(91 S. E. 316), 106 S. C. 360.
13. Where the jury in an action by
a pedestrain for injuries when
struck by a train found no dam-
ages for plaintiff, a charge on the
measure of damages could not
in any view be prejudicial to the
plaintiff. Moseley v. C., C. & O.
Ry. (91 S. E. 380), 106 S. C. 368.
14. Grounds to support an order
sustaining a demurrer to the
complaint which were not pre-
sented to the Circuit Court can-
not be passed upon in the appel-
late Court. Sanders v. York Co.
(91 S. E. 305), 106 S. C. 374.
15. In an action of claim and de-
livery, where no exceptions were
reserved or proper objections
made to the admission of evi-
dence of special damages, on the
ground that special damages
were not alleged, as the trial
Court did not have an opportuni-
ty to rule on the question, it can-
not be considered on appeal.
Vann v. Tyler (91 8. E. 301), 106
S. C. 377.
16. Errors not prejudicial and
which could not reasonably be
supposed to have affected the re-
sult are no ground for reversal.
Charleston & C. W. Ry. Co. v.
Gosnell (90 S. E. 264), 106 S. C.
84.
17. Where the evidence warrants
a particular finding, and such
finding is necessary to support
a general verdict, it will be pre-
sumed to have been made; there-
fore, where the evidence war-
ranted such finding and it was
necessary to support the general
verdict for plaintiff, it will be
presumed the jury found defend-
ant guilty of wilful and wanton
negligence. Callison v. C. & W.
C. Ry. Co. (90 S. E. 260), 106 S.
C. 123.
18. In an action for specific per-
formance of a contract for the
sale of lands for flowage pur-
poses, decision of Supreme Court,
on appeal, that no contract had
been made, and that the parties
he restored to their original
status, did not require defendant
to surrender a deed from plain-
tiff to lands not in dispute, and
to withdraw the water therefrom,
but merely restored the parties
to their status as to matters liti-
gated and left them to litigate
such matters as if no contract
had been made. Adams V.
Georgia-Carolina Power Co. (90
S. E. 702), 106 S. C. 162.
19. Exceptions, not argued on a
criminal appeal, will not be con-
sidered by the Supreme Court.
State v. Shuman (90 S. E. 596),
106 S. C. 150.
20. Defendant, who did not take
steps to perfect his appeal for
several months after lost notice
of appeal was found, did not use
due diligence, and his motion to
perfect his appeal will be denied.
Jennings v. Jennings (90 S. E.
753), 106 S. C. 198.
21. After return to Supreme Court
had been filed with its clerk, Cir-
cuit Court had no jurisdiction to
dismiss defendant's appeal on
plaintiff's motion. Jennings V.
Jennings (90 S. E. 753), 106 S. C.
22. Appeal can be taken only after
entry of judgment on final order.
Adams v. Jackson (91 S. E. 863),
106 S. C. 546.
23. A statement of, facts in coun-
sel's argument may be accepted
as against him. Sweat v. Wolfe
(91 S. E. 799), 106 S. C. 512.
24. No appeal from order denying
nonsuit before final judgment.
Parham-Thomas-McSwain Co. v.
Atlantic Life Ins. Co. (90 S. E.
1022), 106 S. C. 211.
25. Harmless error. C. & W. C.
Ry. Co. v. Gosnell (90 S. E. 264),
106 S. C. 84.
26. Appelate jurisdiction in chan-
cery cases. Tuten v. McAlhaney
(91 S. E. 328), 106 S. C. 328.
27. In view of Code Civ. Proc., sec.
407, relative to appeals to Circuit
Court, which provides that upon
hearing the appeal the Court
shall give judgment according
to the justice of the case, with-
out regard to technical errors
and defects which do not affect
the merits, and that the Court
may affirm or reverse the judg-
ment of the Court below in whole
or in part and as to any or all
of the parties as to errors of law
or fact, in an action to recover
the alleged value of merchandise
and for the penalty for failure
of defendant express company
to pay the claim within the time
required by law, where the testi-
mony was sufficient to sustain
the judgment of the magistrate's
Court for the plaintiff, and it
was affirmed on appeal to the
Circuit Court, the Supreme Court
will assume that the Circuit
Court affirmed the judgment on
the merits, where it does not ap-
pear that the affirmance was con-
trolled or affected by errors of
law. Bagnall v. So. Express Co.
(91 S. E. 334), 106 S. C. 395.
28. Parties to an action to construe
a will, who did not appeal from
the judgment, are not entitled
to any benefit from the Supreme
Court's construction of the will
on appeal; they having been con-
tent to accept the shares accord-
ed them under the will as con-
strued by the Circuit Court.
De Leon v. De Leon (91 S. E.
376), 106 S. C. 401.
29. In an action for partition,
where the first order of sale did
not provide for a failure of the
purchaser to comply, or order
of resale, and where a subse-
quent order of sale did not pro-
vide for a resale in case of pur-
chaser's failure to comply with
the bid, but where the third
order for a resale provided for
judgment against the bidder for
a deficiency, if the property
failed to bring as much as it did
on the last sale, the purchaser
being the same at all the sales,
an appeal before the third sale
from the order as to a deficiency
judgment was premature, as it
could not be then determined
whether appellants would be in-
jured or not; the notice of in-
tention to appeal preserving all
appellant's rights for the final
hearing. Clark v. Dunbar (91
S. E. 323), 106 S. C. 423.
30. In an action for death of a
railroad servant, if it appears
that there was no evidence of
negligence on the part of de-
fendant, the plaintiff cannot re-
cover in any event, and no other
error is prejudicial_to_plaintiff.
Stone v. C., N. & L. R. R. Co.
(91 S. E. 320), 106 S. C. 433.
31. The rule requiring facts stated
in an exception to be based on
an independent statement of
those facts in the case is not
merely technical, but should be
strictly enforced in a criminal
case. State v. Hampton (91 S.
E. 315), 106 S. C. 275.
See Amendments. Guimarin
So. Life & Trust Co. (90 S. E.
319), 106 S. C. 37.
See Costs. Spence
So. Ry.
Co. (90 S. E. 750), 106 S. C. 169.
See Admissions. State v. Perry
(91 S. E. 300), 106 S. C. 289.
APPEARANCE.
1. In an action in which attach-
ment was procured, a motion to
dismiss on the ground that the
allegations of the complaint were
not sufficient to constitute a
cause of action, in that they
failed to show where plaintiff
obtained his information that de-
fendant was disposing of his
property with intent to defraud
his creditors, though not denomi-
nated a demurrer, constituted a
general appearance conferring
jurisdiction on the magistrate to
hear the case. Mims v. Garvin
(91 S. E. 289), 106 S. C. 381.
ASSAULT WITH INTENT TO
KILL.
1. In a prosecution for assault
and battery with intent to kill,
proof that the instrument with
which the cutting was done was
a razor does not constitute a
fatal variance from averments in
the indictment that accused used
a knife. State v. Roof (91 S. E.
314), 106 S. C. 281..
ASSESSMENT FOR TAXA-
See Taxation. Bank v. Neal (90
S. E. 745), 106 S. C. 173.
1. Evidence, in a servant's action
for injury to a brakeman in turn-
ing a switch, then breaking or
theretofore broken, held not to
show plain, open, and obvious
defect, as regards assumption of
risk. Ballenger v. Southern Ry.
Co. (90 S. E. 1019), 106 S. C. 200.
ATTACHMENT.
1. The right of plaintiff to recover
judgment on the alleged indebt-
edness and his right to attach
the property of defendant are
entirely separate and distinct.
Mims v. Garvin (91 S. E. 289),
106 S. C. 381.
2. Formerly an action could be
commenced by attachment, but
now it is only a provisional
remedy in aid of the action, and
if the attachment proceedings
should be set aside for irregu-
larity or other ground, it would
not deprive the magistrate of
jurisdiction to try the case on
its merits, but if the plaintiff
should fail to recover judgment,
the attachment proceedings
would become inoperative. Id.
3. Act 1915 (27 St. at Large, p.
737), sec. 1, providing that when
a motor vehicle is operated in
violation of the law or negligent-
ly or carelessly, and when any-
one receives personal injuries
thereby, or when any property is
damaged thereby, such damages
shall be a lien on such motor
vehicle, next in priority to the
lien for State and county taxes,
recoverable in any Court of com-
petent jurisdiction, with the right
to attach such vehicle as pro-
vided by law for attachment, does
not violate the due process of
law provisions of Const., art. I,
sec. 5, and U. S. Const. Amend.,
14. Merchants & Planters Bank
v. Brigman (91 S. E. 332), 106
S. C. 362.
4. Under such statute the machine
can be attached and made liable
to the lien, where it is loaned,
and the party operating it inflicts
the injury. Id.
ATTORNEY'S FEES.
1. The action of the master in
establishing the fees for plain-
tiff's attorney in advance of the
sale of the property, and the
actual bringing into Court of
the net funds realized therefrom,
was premature, and an exception
thereto will be sustained on the
ground that such services have
not occurred. Barrett v. Still
(91 S. E. 735), 106 S. C. 449.
2. Executors having already em-
ployed a large force of legal
talent may not, without necessity
being shown, employ more at-
torneys and make their compen-
sation a charge on the estate.
In re Coleman (91 S. E. 861),
106 S. C. 534.
3. The criterion for fixing fee of
attorneys employed by executors
is not the amount of the estate,
but the benefits derived and the
labor, learning, and skill in-
volved.
4. In an action to foreclose a pur-
at-
chase-money mortgage, an
torney's fee of 10 per cent. was
reasonable. Wright v. Seale (91
S. E. 291), 106 S. C. 261.
ATTORNEY AND CLIENT.
1. The authority of an attorney
at law or attorney in fact ceased
and was revoked by the client's
or principal's death, and the at-
torney had no power or authority
to represent him after his death.
Bunch v. Dunning (91 S. E. 331),
106 S. C. 300.
AUTOMOBILES.
See Statutes in Reference to
Licenses. Furman v. Willimon
(90 S. E. 700), 106 S. C. 159.
See Municipal Corporations, Use of
Street for Racing Automobiles.
Burnett v. City of Greenville (91
S. E. 203), 106 S. C. 255.
See Attachment, Constitutional
Law, Statutes. Merchants &
Planters Bank v. Brigman (91 8.
E. 332), 106 S. C. 362.
1. Where a tender of goods is re-
fused, though wrongfully, the
tenderer becomes the bailee for
the tenderee, and must take care
of the property at the risk and
expense of the tenderee. Wilson
v. Trexler (90 S. E. 180), 106 S.
C. 15.
BANKS AND BANKING.
1. Where plaintiff bank mistook the
certificate number of a draft for
the amount and overpaid defend-
ant, it was the latter's duty to
give notice of the mistake as soon
as he discovered it, and refusal
to return it after demand was a
conversion and fraud upon the
bank. Bank of Williston v. Al-
derman (91 S. E. 296), 106 S. C.
386.
2. Complaint against bank for re-
fusal to honor checks held not to
state two causes of action.
Raftelis v. Bank of Georgetown
(91 S. E. 317), 106 S. C. 315.
3. As to taxation of bank shares.
See Taxation. Carolina National
Bank v. Spigener (90 S. E. 748),
106 S. C. 185; National Union
Bank v. Neil (90 8. E. 744), 106
S. C. 173.
BILLS AND NOTES.
1. In an action by the assignee of
a note, defendant's allegations
that plaintiff secured the note
after maturity, and that the as-
signor was his uncle, are in-
sufficient to connect plaintiff with
the assignor's alleged wrongful
acts toward defendant. South-
ard v. Marlboro Agricultural Co.
(91 S. E. 976), 106 S. C. 507.
2. Under Negotiable Instruments
Act, secs. 63, 64, a person sign-
ing a note in blank before de-
livery is liable as indorser.
Norwood Nat. Bank v. Piedmont
Pub. Co. (91 S. E. 866), 106 S. C.
472.
3. Possession by the payee bank
of a note payable at its office con-
stitutes a sufficient presentment
and demand. Norwood Nat.
Bank v. Piedmont Pub. Co. (91
S. E. 866), 106 S. C. 472.
4. Negotiable Instruments Law,
sec. 103, regulating time for
notice of dishonor, is complied
with, where an extension of time
for payment was refused one in-
dorser, and notices mailed to
reach both indorsers, on the day
after maturity. Norwood Nat.
Bank v. Piedmont Pub. Co. (91
S. E. 866), 106 S. C. 472.
BONA FIDE CREDITORS AND
PURCHASERS.
1. Notice that land owned by an-
other was also liable on a first
mortgage debt, etc., held suffi-
cient to put subsequent mort-
gagees on inquiry amounting to
notice that the other person was
a mere surety, so that they were
not bona fide creditors without
notice. Wheeler v. Corley (91
S. E. 307), 106 S. C. 319.
2. Past indebtedness is not a suffi-
cient consideration to constitute
the relation of a purchaser for
valuable consideration without
notice. Heyward-Williams Co. v.
Zeigler (91 S. E. 298), 106 S. C.
425.
BOUNDARIES.
1. The call of a deed for boundary
on the south "by S. and others"
is not filled by only one adjacent
proprietor besides S. Metz v.
Metz (91 S. E. 864), 106 S. C.
514.
1. Civ. Code 1912, sec. 1972, pro-
viding for right of action against
county for damages for injuries
sustained by "any person" by
reason of defect in bridge, held
to include county employee work-
ing on bridge. Sanders v. York
County (91 S. E. 305), 106 S. C.
374.
2. In action against county under
Civ. Code 1912, sec. 1972, for
injuries received on bridge, as
complaint showed that plaintiff
did not have load, he was not
required to allege in his com-
plaint that the load did not ex-
ceed ordinary weight. Sanders
v. York County (91 S. E. 305),
106 S. C. 374.
BURDEN OF PROOF.
1. A charge as to justification for
selling intoxicating liquor held
not objectionable as relieving the
State of the burden of proving
the facts charged. State
Hampton (91 S. E. 314), 106 S.
C. 275.
2. Where acts of an insured under
a policy worked a forfeiture of
policy under its terms, it was in-
cumbent upon insured to show
a waiver of forfeiture. Camden
Wholesale Grocery v. National
Fire Ins. Co. of Hartford, Conn.
(91 S. E. 732), 106 S. C. 467.
3. In action upon life insurance
policy, defended on ground that
policy by its terms was void be-
cause when it was executed and
delivered, insured had cancer,
burden of establishing defense
was on defendant, as plaintiffs'
possession of the policy was
prima facie evidence of their
right to recover. Baker
Metropolitan Life Ins. Co. (91
S. E. 324), 106 S. C. 419.
1. Under the statute prohibiting
carriers from making discrimina-
tions, where a railroad issued
two bills of lading for plaintiff's
machinery and furniture, respec-
tively, the goods were
shipped as one carload lot, and
the road and plaintiff could not
validly agree that the shipment
should be considered and treated
as a carload lot of either or both.
Byrd v. A. C. L. R. R. Co. (90
S. E. 181), 106 S. C. 1.
2. Under the rule of the railroad
commission that the charge for
less than a carload shipment
must not exceed the minimum
charge for a minimum carload
of the same freight at the same
rating, a shipper of less than a
carload of machinery was en-
titled to the minimum carload
rate thereon. Id.
3. In a shipper's action against a
railroad for damage to the goods,
where plaintiff proved damage
to the amount claimed, the re-
duction of the amount by the
road's valid counterclaim for
charges did not defeat plaintiff's
right to recover the penalty for
the road's failure to pay his
claim for damage. Id.
4. Despite rulings under Wilson
act, held, that intoxicating
liquors consigned to shipper with
directions to notify another are
subject to State laws where re-
tained by carrier for an unrea-
sonable time; a constructive de-
livery being presumed. Charles-
ton & W. C. Ry Co. v. Gosnell
(90 S. E. 264), 106 S. C. 84.
5. Under Carmack amendment to
the interstate commerce act,
punitive damages are not recov-
erable against a carrier for mere
wrongful acts. Harman V.
Southern Ry. Co. (90 S. E. 1023),
106 S. C. 209.
6. The acts of Congress relating
to interstate commerce are exclu-
sive in that respect, and no dam-
ages for injury to a shipment are
recoverable except those allowed
by the Federal statute. Harman
v. Southern Ry. Co. (90 S. E.
1023), 106 S. C. 209.
7. Under the Carmack amendment
of the interstate commerce act,
punitive damages were not re-
coverable against a carrier for
unauthorized wilful or wanton
acts of its servants in delaying
transportation of goods shipped,
notwithstanding the later enact-
ment of the Cummins amend-
ment, making carriers liable for
"actual loss." De Loach v.
Southern Ry. Co. (90 S. E. 701),
106 S. C. 155.
8. State Courts have jurisdiction
of actions to recover overcharges
of freight rates on interstate
shipments, where no question of
the reasonableness of the rate is
involved. Spence V. Southern
Ry. Co. (90 8. E. 750), 106, S. C.
169.
CARRIERS OF PASSENGERS.
1. Evidence that the ticket office
was closed at a time 35 minutes
before the train actually depart-
ed is not sufficient to warrant a
finding, in an action for ejection,
that the plaintiff had no reason-
able opportunity to purchase a
ticket before boarding the train.
Read v. Atlantic Cost Line R.
Co. (91 S. E. 378), 106 S. C. 441.
|