bonds, and real estate to devisees
and legatees under will, under
an order of Court, for prices
agreed to be paid, held that such
conveyances in kind were not
sales, and did not entitle admin-
istrator to commissions under
Civ. Code 1912, sec. 3653. Hern-
don v. Caine (91 S. E. 1), 106
S. C. 230.

FEDERAL EMPLOYERS' LIA-
BILITY ACT.

See Compromise and Settlement.
Ballenger v. So. Ry. Co. (90
S. E. 1019), 106 S. C. 200. Mas-
ter and Servant. Seyle v.
Charleston Terminal Co. (90 S.
E. 1016), 106 S. C. 215. Dam-
ages. De Loach v. So. Ry. Co.
(90 S. E. 701), 106 S. C. 155.

FIRES.

1. Action to recover for damages
by. See Magistrates. Barnes v.
C. & W. C. Ry. Co. (90 S. E.
1017), 106 S. C. 227.

FORECLOSURE OF LIENS
1. Defense of deficiency in acre-
age sold. See Deeds. Wright v.
Seale (91 S. E. 291), 106 S. C.
261.

2. Foreclosure of factor's lien.
Gordon-McCabe & Co. v. Colle-
ton Mercantile & Manufacturers
Co. (90 S. E. 161), 106 S. C. 25.
3. Of mortgages; necessary par-
ties. See Mortgages. Bank of
Prosperity v. Dominick (90 S. E.
264), 106 S. C. 120.

4. Form of decree. See Mort-
gages. Barron v. So. Scale &
Fixture Co. (91 S. E. 321), 106
S. C. 342.

3. Notice to purchaser of fraud
in conveyance. See Vender and
Purchaser. Tuten v. McAlhaney
(91 S. E. 328), 106 S. C. 328.

FRAUDS, STATUTE OF.

1. A contract reading that it was
agreed that defendant sold to
plaintiff 200 bales of lint cotton
at 11 cents a pound, to be set-
tled for at the difference ruling
in S. on day of delivery, to be
delivered between certain dates,
which was not signed by defend-
ant, and a signed letter from de-
fendant to plaintiff stating that
he objected to the wording of the
contract, refused to sign it, and
was returning it, did not con-
stitute such a note or memoran-
dum of the contract for the sale
of cotton, signed by the party
charged, as satisfied the statute
of fraud. Harly v. Wilson (90
S. E. 183), 106 S. C. 7.

2. It is not competent to prove
by oral testimony any of the
essential elements of a contract
which the statute of frauds re-
quires to be in writing, such
testimony being only competent
to connect different writings,
which must themselves contain
all the essential elements of the
contract, the party to be charged
acknowledging in writing that
they do. Id.

3. That one has undertaken to
answer for the default of another
cannot be proved by parol.
Guimarin v. So. Life & Trust Co.
(90 S. E. 319), 106 S. C. 37.
4. An alleged oral contract by a
person since deceased to will
property to the plaintiff is void
as within the statute of frauds.
Brown v. Golightly (91 S. E.
869), 106 S. C. 519.

FREIGHT OVERCHARGES.
See Courts. Spence v. So. Ry. Cɔ.
(90 S. E. 750), 106 S. C. 169.

HIGHWAYS.

1. Issuance of bonds for improve-
ment of. Furman v. Willimon
(90 S. E. 700), 106 S. C. 159.
2. Liability for permitting use of
streets in dangerous ways. Bur-

nett v. City of Greenville (91
S. E. 203), 106 S. C. 255.

3. Cr. Code 1912, sec. 635, relating
to obstruction of highways and
to conviction in the magistrate's
Courts, does not apply to neigh-
borhood roads, which are public
highways only in the sense that
the public have acquired the
legal right to use them. State v.
Mellette (91 S. E. 4), 106 S. C.
224.

4. Regulating use of automobiles
on highways in a valid exercise
of the legislative police power.
Merchants etc. Bank v. Brigman
(91 S. E. 332), 106 S. C. 362.

HOMESTEAD.

1. Proceedings and exceptions on
appraisement of. Barrett v.
Still (91 S. E. 735), 106 S. C.
449.

HOMICIDE.

1. In a prosecution for murder,
error in the charge that, to have
a right to kill in self-defense, de-
fendant must find himself in a
condition of circumstances with-
out such fault on his part as in-
duces him to believe he is in im-
minent danger of being killed or
suffering serious bodily harm if
he does not take the life of his
assailant and there is no other
reasonable means of escape ex-
cept taking his life, was cured by
the following statement that the
danger must be real or appar-
ent, and by adding, in response
to a request to charge, that a
man of ordinary reason and firm-
ness ought to have found such
belief, and if defendant desired
a clearer statement, he should
have requested it. State v.
Stevens (91 S. E. 302), 106 S. C.
272.

2. In a prosecution for murder,
a charge, stating the law in case
the defendant had renewed the
initial difficulty, was not erro-
neous as intimating that defend-
ant did renew the difficulty. Id.
3. In a prosecution for homicide,
where there was evidence tend-
ing to show that defendant re-
newed the initial difficulty, it was

4. In a prosecution for homicide,
where the only defense was self-
defense, but there was evidence
of provocation, a charge that ac-
cused, having admitted the kill-
ing, had the burden to excuse
his acts as self-defense was not
erroneous, as tending to mislead
the jury into disregarding provo-
cation which might reduce the
offense to manslaughter, the
Court charging as to manslaugh-
ter, and telling the jury they
could find defendant guilty of
manslaughter. Id.

5. The statute fixes the penalty
for murder, but, in a prosecution
for homicide, if the jury finds a
verdict of guilty of murder, they
have the right to add, if they
see proper, a recommendation to
mercy, which will reduce the pun-
ishment to imprisonment in the
State penitentiary for life. Id.
6. Exceptions, not argued on a
criminal appeal, will not be
considered by the Supreme
Court. State v. Shuman (90 S.
E. 596), 106 S. C. 150.

7. An instruction held not erro-
neous as failing to charge that
the defendant was entitled to
the benefit of every reasonable
doubt on every material point,
or as failing to charge the mean-
ing of reasonable doubt. State
v. Shuman (90 S. E. 596), 106
S. C. 150.

8. A Judge has no right to threat-
en or intimidate a jury or un-
duly detain them in order to af-
fect their deliberations. State v.
Shuman (90 S. E. 596), 106 S. C.
150.

9. Where the case was submitted
at 5 o'clock and the jury were in
the jury room until 11 o'clock
next morning, when they ren-
dered a verdict of guilty, an in-
struction, intimating that the
Judge would keep the jury three
weeks if they did not agree, held
error prejudicial to accused.
State v. Shuman (90 S. E. 596),
106 S. C. 150.

10. Testimony of jurors in a crimi-
nal case as to whether the charge
of the trial Court coerced them
into finding a verdict is im-
proper. State v. Shuman (90 S.
E. 596), 106 S. C. 150.

11. Newly discovered evidence, in
a prosecution for murder, which
would corroborate defendant's
testimony, that deceased was
armed and that he called defend-
ant to the place of the difficulty
instead of defendant following
him, is not "cumulative," where
defendant's testimony alone con-
tradicted that offered by the
State on those issues, augment-
ing or giving force to the evi-
dence or increasing it by succes-
sive additions. State v. Wiley
(91 S. E. 382), 106 S. C. 437.
12. Lack of diligence by accused
in securing the testimony at the
former trial of witnesses present
in Court at that time is not
shown, where he did not know
that the witnesses were present
at the difficulty, or had any per-
sonal knowledge of it, where the
witnesses were white men and
the defendant colored. Id.
13. In a prosecution for murder,
where defendant's testimony
alone contradicted evidence by
the State that deceased was un-
armed and that defendant fol-
lowed him to the scene of the
difficulty, newly discovered evi-
dence of other witnesses corrobo-
rating defendant's testimony is
material and would probably
change the result. Id.

14. 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.

HUSBAND AND WIFE.

1. Where plaintiff through her
husband loaned money to defend-
ant, fact that husband gave it
to defendant as an investment in
his store and not as a loan would
not bind plaintiff, unless she au-

thorized her husband to act for
her. True v. Cudd (91 S. E.
856), 106 S. C. 478.

2. In an action for money alleged
to have been loaned by plaintiff
through her husband to defend-
ant, evidence held not to show
relationship of principal and
agent between plaintiff and her
husband. True v. Cudd (91 S.
E. 856), 106 S. C. 478.

3. In an action for money alleged
to have been loaned by plaintiff
through her husband to defend-
ant whether plaintiff's husband
was manager of defendant's store
at time of loans, and not plain-
tiff's agent, held for jury. True
v. Cudd (91 S. E. 856), 106 S. C.
478.

INDICTMENT AND INFOR-
MATION.

1. An indictment under Cr. Code
1912, sec. 405, providing that any
one in possession of cocaine or
a mixture thereof, with certain
exceptions, shall be guilty of a
misdemeanor, need not allege
that defendant wilfully and
knowingly had possession of the
cocaine; those words not being
used in the statute. State v.
Freeland (91 S. E. 3), 106 S. C.
220.

2. An indictment for violation of
Cr. Code 1912, sec. 405, must
negative the exception which is
included in the enacting clause.
State v. Freeland (91 S. E. 3),
106 S. C. 220.

INJUNCTION.

1. Against closing street. See
Municipal Corporations. Batson
v. So. Ry. Co. (91 S. E. 310),
106 S. C. 307.

INSURANCE.

1. In action by beneficiary to re-
cover on life policy, where in-
surer claimed premium received
by it was paid and applied upon
another policy, evidence held
sufficient to submit the case to
the jury. Stallings v. Atlantic
Life Ins. Co. (91 S. E. 290), 106
S. C. 317.

2. In action for insurance agent's
failure to cancel a policy, a ten-
der or return of the premium
is not necessary in the absence
of a showing that the agent had
none of the company's money on
hand. Westchester Fire Ins. Co.
v. Bollin (90 S. E. 327), 106 S. C.
45.

3. It is no defense to an action
for an insurance agent's failure
to cancel a policy that the special
agent who directed its cancella-
tion had power to cancel it. Id.
4. The conduct of other local
agents when ordered to cancel
policies is irrelevant in an action
for an agent's failure to cancel,
unless such conduct was brought
to the company's knowledge. Id.
5. In an action for an insurance
agent's failure to cancel a policy,
it was error to exclude evidence
that the agent's attention was
never called to the prohibited
list. Id.

6. An insurance agent held not
entitled to a directed verdict in
an action for his failure to can-
cel a policy on the ground that
plaintiff failed to prove a con-
tract requiring the agent to ren-
der that service. Id.

7. A verdict could not be directed
in an action for an insurance
agent's negligence in failing to
cancel the policy. Id.

8. Under life policy providing for
part payment on physical dis-
ability which wholly, continuous-
ly and permanently incapacitates
insured from carrying on any
gainful occupation, evidence held
to warrant submission to jury
of issue of disability. Taylor v.
So. States Life Ins. Co. (91 S. E.
326), 106 S. C. 356.

9. An illiterate three-horse farm-
er, accustomed only to bodily
labor, made by disease suddenly
unfit for it, comes within the
meaning of a clause providing
for part payment on physical
disability which wholly, contin-
uously, and permanently inca-
pacitates insured from carrying
on any gainful occupation. Tay-

lor v. So. States Life Ins Co. (91
S. E. 326), 106 S. C. 356.

10. In an action upon a life insur-
ance policy, defended on the
ground that the policy by its
terms was void in that insured,
when it was executed and de-
livered, had cancer, the burden
of establishing the defense was
on the defendant, and plaintiffs'
possession of the policy was
prima facie evidence of their
right to recover. Baker v. Metro-
politan Life Ins. Co. (91 S. E.
324), 106 S. C. 419.

11. In such action, held, on the evi-
dence, that whether insured was
in good health when the policy
was executed and delivered was
for the jury. Id.

12. In an action upon a policy of
life insurance, defended on the
ground of its avoidance because
insured when it was executed
had cancer, evidence held to
make the insurer's waiver a ques-
tion for the jury. Baker v.
Metropolitan Life Ins. Co. (91
S. E. 324), 106 S. C. 419.

13. An examination of the deceased
by a physician chosen by the in-
surer is some evidence that a
disease, which under the terms
of the policy would have avoided
it, did not exist when the policy
was executed. Id.

14. An examination of the deceased
by a physician chosen by the in-
sured is some evidence that the
existence of a disease, which by
the terms of the policy would
have avoided it, was known to
and waived by the insurer. Id.
15. Where Civ. Code 1912, sec.
2719, providing that after 60 days
insurer shall be estopped to deny
truth of statement in an appli-
cation for fire insurance which
was accepted, except for fraud
in making application, was in
existence when fire policy was
issued, provisions of policy must
be construed as if section had
been incorporated therein. Cam-
den Wholesale Grocery v. Na-
tional Fire Ins. Co. of Hart-
ford, Conn. (91 S. E. 732), 106
S. C. 467.

16. Under Civ. Code 1912, sec.
2719, provided that insurer shall
be estopped to deny truth of
statement in applications for
policy after 60 days, where a fire
policy, providing that it should
be void if personal property in-
sured be or become incumbered
by a chattel mortgage, was is-
sued on personal property incum-
bered by chattel mortgage, policy
held valid. Camden Wholesale
Grocery v. National Fire Ins.
Co. of Hartford, Conn. (91 S. E.
732), 106 S. C. 467.

17. Under Civ. Code 1912, sec. 2719,
providing that insured shall be
estopped to deny truth of state-
ment in application for policy
after 60 days, where a fire policy,
providing that it should be void
if property were insured at or
after its issuance, was issued on
insured property, policy held
valid. Camden Wholesale Gro-
cery v. National Fire Ins. Co. of
Hartford, Conn. (91 S. E. 732),
106 S. C. 467.

18. Where fire policy provided that
it would be void if insured there-
after procured other contract of
insurance, action of insured in
thereafter procuring another
policy of insurance on same
property worked a forfeiture of
first policy. Camden Wholesale
Grocery v. National Fire Ins. Co.
of Hartford, Conn. (91 S. E.
732), 106 S. C. 467.

19. In an action on a fire insurance
policy, evidence that insured
conveyed property to plaintiff
and assigned policy to plaintiff,
but reserved right to repurchase
within one year and did not de-
liver assigned policy to plaintiff,
held to justify inference that in-
surance would only be operative
during time vendor could exercise
option to repurchase, and that
after that plaintiff had no inter-
est in policy. Camden Whole-
sale Grocery v. National Fire
Ins. Co. of Hartford, Conn. (91
S. E. 732), 106 S. C. 467.

INTERSTATE COMMERCE.
See Commerce. C. & W. C. Ry.
Co. v. Gosnell (90 S. E. 264), |

106 S. C. 84; Brennan v. So. Ex-
press Co. (90 S. E. 402), 106 S.
C. 102; Harman v. So. Ry. Co.
(90 S. E. 1023), 106 S. C. 209;
De Loach v. So. Ry. Co. (90 S. E.
701), 106 S. C. 155. Carriers of
Goods. Spence v. So. Ry. Co.
(90 8. E. 750), 106 S. Č. 169.
Master and Servant. Seyle v.
Charleston Terminal Co. (90 S.
E. 1016), 106 S. C. 215.
INTOXICATING LIQUORS.

1. In view of the statutory decla-
ration that all alcoholic liquors
are detrimental and their use
against the morals, good health,
and safety of the State, no man
has a natural right to sell intoxi-
cating liquors, and it is not error
for the Court so to instruct the
jury. State v. Hampton (91 S.
E. 314), 106 S. C. 275.

2. A charge that, where a man
is chargeable with the sale of in-
toxicating liquors, if the burden
of proof has been sustained by
the State as later charged, he
can justify himself only by show-
ing that he made the sale in the
manner authorized by law, is
not objectionable as relieving the
State of the burden of proving
the facts charged. Id.

3. In a prosecution for sale of
liquor, in which the accused set
up an alibi, instructions that,
"The sole question for your de-
termination is whether or not the
accused sold one-half pint of
whiskey to ** as alleged in
this bill of indictment," and
"take along with you the sole
issue in the case, give the de-
fendant the benefit of every rea-
sonable doubt," and that if de-
fendant was not at the place
where he is alleged to have sold
the whiskey, he could not have
committed the crime, gave full
effect to the defendant's alibi,
since the alibi was merely the
means of disproving the charge.
State v. Grice (91 S. E. 383),
106 S. C. 279.

4. Interstate shipments of intox-
icating liquor consigned to the
shipper with order to notify
were intended by the party to