(Supreme Court of South Carolina. July 12, gang for the county of Sumter or pay a fine

The order of Justice Fraser was as follows: "This is a proceeding in habeas corpus. The defendant was convicted by the recorder of the city of Sumter upon six charges of petit larceny and sentenced to 30 days for The case of City of Anderson v. Seligman, each offense. There was included in the in- 85 S. C. 16, 67 S. E 13, is conclusive and dictment a charge of carrying concealed controls this case. On page 18 of 85 S. C., on weapons. The defendant was also convicted page 13 of 67 S. E., of that case, Justice of this offense. The alternative was given (now Chief Justice) Gary uses the following in each case of paying a fine. The defendant language: "When section 2003 of the Code of paid the fine for carrying concealed weap- Laws 1902 conferred upon mayors the powers

and authority of magistrates in criminal | trate. Before the case was submitted to the cases, within the corporate limits and police jury, the attorney for the defendant asked jurisdiction of their respective cities, it was that a special verdict be also rendered by the merely intended to give to mayors the same jury, fixing the amount due to the plaintiffs power to try persons charged with the viola- by the defendant. In response to this retion of an ordinance that a magistrate had to quest, the verdict of the jury was as follows: try a person charged with the violation of 'We find for the plaintiffs the right to the a statute or other law of the state in cases possession of the property in dispute, or the where the punishment did not exceed a fine value thereof, to wit, the sum of $100, in case of $100 or imprisonment for 30 days. A vio- the return thereof cannot be had. We find the lation of the provisions of an ordinance of a defendant is due the plaintiff the sum of city and a violation of the statute of the $100. Eugene E. Aycock, Foreman.' state are two separate and distinct offenses." Judgment affirmed.

"From the judgment entered on this verdict, the defendant appealed to the Supreme Court upon nine exceptions, asking for a new trial upon four grounds. Upon said appeal the Supreme Court refused the new trial, and affirmed the verdict below, with the exception of the special finding of the jury, which was reduced in amount from $100 to $77.55.

(Supreme Court of South Carolina. July 14, Thereupon the plaintiffs gave notice of a mo

1913.)

1. COSTS (§ 3*)-TAXATION-STATUTES.

Costs are purely statutory.

tion to tax the appeal costs, and the defendant gave a like notice. When the motion came on to be heard by the clerk of the cir

[Ed. Note.-For other cases, see Costs, Cent. cuit court, the said clerk taxed the costs in Dig. 88 1, 4, 5; Dec. Dig. § 3.*]

2. COSTS (§ 231*)-RECOVERY BY SUCCESSFUL PARTY-STATUTES.

Under Code Civ. Proc. 1912, § 412, declaring that, where the judgment in the appellate court is more favorable to appellant than the judgment appealed from, he shall recover costs, a defendant appealing from a judgment against him in claim and delivery which awards to plaintiff the right of possession of the property in dispute or the value fixed at $100, is entitled to costs, where the appellate court affirms the judgment, with the exception that it reduces the amount to $77.50. [Ed. Note.-For other cases, see Costs, Cent. Dig. $8 847, 852, 853, 855, 872-875; Dec. Dig. § 231.*]

Appeal from Common Pleas Circuit Court of Sumter County; Ernest Gary, Judge.

Action by Brown & Parler against J. R. Kolb. From a judgment taxing costs in favor of plaintiffs against defendant, the latter appeals. Reversed.

A. B. Stuckey, of Sumter, for appellant. L. D. Jennings and R. D. Epps, both of Sumter, for respondents.

FRASER, J. The respondent's statement of this case is as follows:

"This is an appeal from the order of his honor, Judge Ernest Gary, in the above-stated case, taxing the costs upon appeal against the defendant, who was the appellant upon the first appeal. This was an action in claim and delivery brought in the court of magis

favor of the defendant and against the plaintiffs. The plaintiffs thereupon moved his honor, Judge Ernest Gary, to correct said taxation, and to tax the costs in favor of the plaintiffs. When this motion was heard by his honor, the circuit judge, his honor passed an order correcting the said taxation, and ordered that the said costs be taxed in favor of the plaintiffs against the defendant. From this order the defendant now appeals."

[1, 2] Costs are purely statutory. The statute provides as follows (Code 1912, Vol. 2 [Civil Procedure] § 412): "If such offer be not made (none was made here) and the judgment of the appellate court be more favorable to the appellant than the judgment of the court below, or if such offer be made and not accepted, and the judgment in the appellate court be more favorable to the appellant than the offer of the respondent, the appellant shall recover costs: Provided, however, that the appellant shall not recover costs unless the judgment appealed from shall be reversed on such appeal, or be made more favorable to him, to the amount of at least ten dollars."

The judgment was made more favorable to the appellant herein to the amount of $22.45, and the statute says the appellant shall recover costs.

The judgment appealed from is reversed.

GARY, C. J., and WATTS, J., concur. HYDRICK, J., concurs in result.

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

(Supreme Court of South Carolina. June 14, which plaintiff was injured, was unsafe, and

edge of such laws and forces; and hence
they are chargeable only with the results of
errors which are due to negligence. The
servant on entering the employment assumes
the risk of his own errors, whether due to
negligence or not, and he assumes also the
risk of the operation of the machine and of
the errors of the master, unless the master
fails to use due care in making the machine
safe. When an injury to a servant is proved
to result from a defective machine, the law
puts upon the master the burden of proving
that he used due care in making it safe. La-
sure v. Mfg. Co., 18 S. C. 275; Carter v.

Oliver Oil Co., 34 S. C. 211, 13 S. E. 419 [27
Am. St. Rep. 815]; Branch v. Ry. Co., 35
S. C. 405, 14 S. E. 808"-and his honor com-
mitted no error.

against an appointee by the supervisor and the retiring commissioners.

[Ed. Note. For other cases, see Counties, Cent. Dig. 88 87-90; Dec. Dig. 8 63.*]

Quo warranto by the State, on the relation of J. S. Aker, against John J. Major, to determine conflicting claims to office. Judgment for relator.

K. P. Smith, of Anderson, for relator.

PER CURIAM. This is an action, in the

nature of quo warranto, to determine the conflicting claims of the plaintiff and defend

ant to the office of clerk of the board of coun

ty commissioners for Anderson county. That board is composed of the county supervisor, who is elected by the people, and two commissioners, who are appointed by the Govern[3] We cannot see that he was in error in reor, upon the recommendation of the memfusing to charge the seventh and eighth excep- bers of the General Assembly for that countions; he left all of the fact to the jury to ty. The term of office of the supervisor and find what were the conditions at the time of commissioners is two years, and until their the injury. He charged the jury carefully successors are elected or appointed and qualand fully as to the issues made by the plead-ified. By statute the supervisor is made ings and evidence, and in his own language chairman of the board. Civil Code 1912, §§ instructed them fully as to the law of the 935, 938, 940. case, and all of the law embodied in these requests were substantially charged in his honor's general charge. Reference to the charge shows that the substance of every sound proposition of law contained in the requests was given to the jury. "The judge has the right to charge the law of the case in his own language, and where he fully discharges this duty, he is not required to charge abstract propositions or sound propositions of the law applicable." Joyner v. Atlantic Coast Line R. R. Co., 91 S. C. 104, 74 S. E. 825.

All exceptions are overruled.
Judgment affirmed.

GARY, C. J., and HYDRICK, J., concur.

(94 S. C. 472)

STATE ex rel. AKER v. MAJOR.

The present supervisor, being in office, was re-elected, at the last general election, to succeed himself, and was commissioned for his new term in the early part of January. The present commissioners were not appointed and commissioned until the early part of March. Before that time, to wit, in January, the supervisor and outgoing commissioners undertook to appoint defendant clerk of the board for two years from that date. At a meeting of the board held on March 4th, after the present commissioners were appointed and qualified, the plaintiff was ap pointed clerk of the board by them, over the objection of the supervisor, who contended that the defendant's appointment was good for two years. The principles announced by this court in the case of Sanders v. Belue, 78 S. C. 171, 58 S. E. 762, are conclusive of every question involved in this case, and applied to the facts of this case, they show

(Supreme Court of South Carolina. May 15, clearly that the plaintiff is entitled to the

1913.)

COUNTIES (8 63*)—OFFICERS-APPOINTMENT.

The clerk of the board of county commissioners of a county, composed of a supervisor and two commissioners, holding for two years, who is appointed over the protest of the supervisor by the commissioners appointed and qualifying in March, is entitled to the office as

office.

It is therefore adjudged that the defendant has no right to the office in question, and that he be excluded therefrom, and that he deliver to the plaintiff the books and other property and appurtenances of the office, and pay the costs of these proceedings.

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Equitable action by Mrs. S. E. Gabbetting on Currier street, with the vertex about against George B. Hinman. Mrs. Gabbett dying, W. R. Hammond, executor, was substituted. Judgment for defendant, and the substituted plaintiff brings error. Affirmed. W. R. Hammond, of Atlanta, in pro. per. Tye, Peeples & Jordan, of Atlanta, for de fendant in error.

ATKINSON, J. Mrs. S. E. Gabbett instituted an action to reform a deed, and for other equitable relief, against George B. Hinman. Pending the action Mrs. Gabbett died, and thereafter an amendment was allowed making her executor the party plaintiff. The bill of exceptions assigns error on a judgment

of nonsuit.

80 feet back in the lot, thus preventing to that extent defendant's acquired land from adjoining that of Mrs. Hinman. The alleged grounds relied on for reformation were mistake of the plaintiff and her agent, at the time the land was measured and the deed executed, as to the true location of the dividing line between Mrs. Hinman and Mrs. Gabbett, from which the measurement cammenced, whereby, instead of commencing at the true line, the measurement began 27 feet east thereof, and, when incorporated in the deed, resulted in giving defendant 27 feet frontage more than he bought and paid for, and actual fraud on the part of defendant, in that he knew the location of the true dividing line, and that the point at which the measurement commenced was 27 feet east thereof, and knew that the plaintiff and her agent were ignorant thereof, but nevertheless, in order to gain that amount of frontage without paying for it, co-operated with the plaintiff's agent in making the false measurement, knowing that the agent was acting under a mistake, and failed to inform him of it, and after the measurement was so made caused the deed to be executed, whereby it conveyed to him 202 feet frontage, while he only paid for 175. It was alleged that the land was bought by the front foot at $10 per foot, and the land pointed out to the defendant, and sold to him, and paid for by him, was only the 175 feet frontage next west from the projection of Lowndes street, and did not include the 27 feet frontage that lay next west of it. Based on the same allegations of fraud and mistake, there were prayers for the recovery of that part of the land which it was alleged was not intended to be conveyed, and, if not entitled to such relief, that plaintiff have a money judgment for $270 as the price thereof.

In the city of Atlanta, Currier street runs east and west. At right angles from the north Ripley street runs into it. Farther east, Lowndes street opens into it, approaching at right angles from the south. On the east side of Ripley street, and the north side of Currier street, Mrs. Hinman owned a lot which fronted on both of these streets. Adjoining this lot on the east, and extending along the north side of Currier street beyond the projection of Lowndes street, was a tract of land belonging to Mrs. Gabbett. She sold a portion of this property to the defendant, the husband of Mrs. Hinman, and executed a deed describing the property as follows: "All that tract or parcel of land lying in land lot fifty (50) of the fourteenth (14th) district of originally Henry, now Fulton, county, Georgia, commencing at a point on the northern side of Currier street, at the corner of Cora F. Hinman's lot, one hundred and sixty-one (161) feet, more or less, east of Ripley street, at which point was the dividing line between Ripley and Gabbett property as per plat made by H. L. Currier April 23, 1862; from thence running easterly along the northern side of Currier street one hundred and seven- When the case was brought to this court ty-five (175) feet more or less to a point di- on exceptions to a judgment dismissing the rectly opposite the western side of Lowndes petition on general demurrer, the deed was street, now opening into Currier street on the construed as conveying all the land between southern side thereof; thence running north- the projection of Lowndes street and the erly, in a line parallel with Ripley street, true line of division between Mrs. Hinman one hundred (100) feet; thence in a westerly and Mrs. Gabbett; and on the allegations of direction, parallel with Currier street, to a mistake on the one hand and fraud on the point on the dividing line between Ripley other it was held that a case was alleged and Gabbett property as per plat as afore- for reformation of the deed, and the judgFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes