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.
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.
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.
1. Proceedings and exceptions on appraisement of. Barrett v. Still (91 S. E. 735), 106 S. C. 449.
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.
1. Against closing street. See Municipal Corporations. Batson v. So. Ry. Co. (91 S. E. 310), 106 S. C. 307.
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
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