Williams v. Columbia Mills Co.,
85 S. E. 160, 100 S. C. 363.
3. Where a written contract shows
upon its face that it was made
on behalf of a corporation, and
it appears from evidence, ali-
unde, that the officer making it
had authority to act for the cor-
poration, that he did so act, and
that the corporation received
the benefits of the contract, the
corporation is estopped to deny
its obligation under the contract
on the ground that the contract
is executed in the individual
Herndon
name of such officer.

v. Wardlaw, 84 S. E. 112, 100
S. C. 1.

See, also, Equities.

Gibbes Ma-

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

EVIDENCE.

1. A contract held ambiguous on
the question whether it evi-
denced a loan or a purchase of
stock, and hence parol evidence
of the surrounding circum-

stances was admissible. Hern-
don v. Wardlaw, 84 S. E. 112,
100 S. C. 1.

2. In an action for the price of
fertilizers sold by plaintiff to
defendant, who relied on agency,
a note and mortgage given by
a third person to plaintiff, for
fertilizers sold by defendant,
held inadmissible, being self-
serving declarations. Wakefield
v. Spoon, 84 S. E. 418, 100 S.
C. 100.

3. Complaints of pain after an in-
jury may be proved. Camp v.
Atlanta & C. A. L. Ry. Co., 84
S. E. 825, 100 S. C. 294.
4. Evidence that plaintiff rail-
road's station agent had re-
quested defendant to remove
her encroachment upon its right
of way held inadmissible, where
he had no authority in regard
to encroachment. Atlantic Coast
Line R. Co. v. Dawes, 84 S. E.
830, 100 S. C. 258.

5. Evidence of declaration of
roadmaster of plaintiff's rail-
road, in a suit to recover pos-
session of part of its right of

way, held inadmissible as made
without authority. Id.

6. In a suit by a railroad for part
of its right of way, encroached
on by defendant, evidence that
a plat of the right of way, made
by the railroad for use in an
other case, but introduced by
defendant, was not drawn to
scale, held improperly excluded.
Id.

7. Plat of roadbed of plaintiff
railroad, suing to recover pos-
session of its right of way al-
leged to have been encroached
upon, held admissible in evi-
dence. Atlantic Coast Line R.
Co. v. Dawes, 84 S. E. 830, 100
S. C. 258.

8. In a boundary suit, the decla-
ration of a former owner in pos-
session accompanying and ex-
plaining acts of ownership, and
tending to show the character
and extent of his possession,
are admissible. Holden v. Can-
trell, 84 S. E. 826, 100 S. C. 265.
9. Evidence on the part of plain-
tiff, buyer of hay, as to a tele-
phone conversation, supposedly
with defendant seller, held ad-
missible in an action for failure
to deliver carloads contracted
for. Medlin v. Adams Grain &
Provision Co., 84 S. E. 867, 100
S. C. 359.

10. Ledger sheet, showing account
between payee and indorsee of
note, and entry on stub of
payee's checkbook, held properly
excluded in action by the in-
dorsee. Edens v. Gibson, 84 S.
E. 1005, 100 S. C. 353.
11. In an action for damages
caused by wrongful ejectment
from a house, where plaintiff
had stated the facts, he can give
his opinion as to the damage
done to the furniture. Williams
v. Columbia Mills Co., 85 S. E.
160, 100 S. C. 363.

V.

12. The trial Court has consider-
able discretion in determining
what is res gestae. Mims
Atlantic Coast Line R. Co., 85
S. E. 372, 100 S. C. 375.
13. Testimony that plaintiff got
the property in question from C.,
is not objectionable as contra-
dicting varying statement in

written instrument of mortgage
of same property given a third
party. Williams v. Weekley, 84
S. E. 299, 100 S. C. 28.
14. Parol testimony is admissible
to show agency of person receiv-
ing money for a mortgage, and
payment through such agent.
Id.

15. Where a wilful trespass in

taking personal property is al-
leged, the admission of testi-
mony to show the circumstances
which led to the taking, is
within the discretion of the trial
Judge. Id.

16. Where there was testimony to
show agency of a third party
to receive payments due a mort-
gagee, receipts given by such
party for such payments are
relevant in action against the
assignee of the mortgagee. Id.
17. Where there is any evidence

tending to sustain a verdict, the
weight to be given it must be
determined by the trial Court,
and its decision cannot be re-
viewed upon appeal. Yar-
borough v. Columb'a Ry, etc.
Co., 84 S. E. 308, 100 S. C. 33.
18. Testimony of the Court ste-
nographer offered after ver-
dict upon a second trial to prove
statements of a witness at the
former trial is not newly dis-
covered and was properly held
in the case at bar to be cumula-
tive to other testimony on such
second trial. Yarborough v. Co-
lumbia etc. Co., 84 S. E. 308, 100
S. C. 33.

19. There is no presumption that
the agent of a telegraph com-
pany receiving a message over
a telephone line understood it
or was negligent in failing to
understand it. Painter v. W.
U. Tel. Co., 84 S. E. 293, 100
S. C. 65.

20. In an action against a tele-
graph company for damages
arising from its mistake either
in transcribing a message tele-
phoned to its office, or in there-
after transmitting it, mere fail-
ure to correctly transcribe and
transmit the message is not suffi-
cient evidence upon which to

base a verdict for punitive dam-
ages. Id.

21. A question, which does not
suggest to the witness an an-
swer either in the affirmative or
negative, is not a "leading ques-
tion." Smith v. Union-Buffalo
Mills Co., 84 S. E. 422, 100 S.
C. 115.

22. Allowance of leading ques-
tions rest in the discretion of
the trial Court, and its action
will not be disturbed unless the
discretion has been abused to the
prejudice of the party com-
plaining. Id.

23. Where the record does not
show any specific ground of ob-
jection urged below to the ad-
mission of evidence or any spe-
cific ground on which the Court
rested its ruling, the ruling is
not reviewable. Id.

24. A party cannot complain of

the admission of evidence to
prove facts shown by his subse-
quent cross-examination of wit-
nesses. Id.

25. The admission of testimony in
reply rests largely in the dis-
cretion of the trial Court, and
the Court on appeal will not in-
terfere unless there has been an
erroneous exercise of discretion.
Id.

26. Where the Senate Journal of
February 24, 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 confirma-
tion, and requested that an ap-
pointment to such office be sent
as early as possible; and the
journal of February 29th re-
cites 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 con-
firmation 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
27. On a trial for arson, where,

though it appeared that accused
before setting fire to a dwelling
house shot the owner and struck

him on the head with an axe,
there was no evidence that he

was dead, an objection, that
there was no testimony to sus-
tain the allegation that such
person was the owner of the
dwelling house at the time it
was burned, was properly over-
ruled. State v. Rogers, 84 S. E.
304, 100 S. C. 77.

28. The testimony of the survivor
is incompetent under Code Civil
Proc., sec. 438, to establish
against a decedent, an alleged
contract between them, to make
mutual wills in favor of each
other. Dicks v. Cassels, 84 S.
E. 878, 100 S. C. 341.
29. Evidence of time and place

and nearness of persons held
to warrant the jury concluding
defendant's language was calcu-
lated to produce disorder and
disturb the public peace and
quiet. State v. Byrnes, 81 S.
E. 822, 100 S. C. 230.

30. "Copartnership" is a factitious

relationship btween two or more
persons, and its existence de-
pends on the agreement between
the parties and the agreement
may be established by parol.
State v. Grumbles, 84 S. E. 783,
100 S. C. 238.

31. On a trial for homicide, where
accused testified that, at an in-
terview between him and de-
ceased a few days before the
homicide, deceased manifested a
hostile and threatening attitude
towards him, it was error to
admit evidence of deceased's
declarations a few minutes after
such interview as to things that
occurred in the interview hav-
ing no reference to his claimed
threats or threatening attitude.
State v. Tidwell, 84 S. E. 778,
100 S. C. 248.

32. On a trial for killing a

man

claimed to have wronged ac-
cused's daughter, it was error to
admit evidence and permit
cross-examination of accused
and his daughter as to the lewd
life of the daughter and her
stepmother, accused's wife, and
their illicit intercourse with men
other than deceased. Id.

33. On a trial for killing a man
as a result of a meeting between
him, another man, and accused's
wife and daughter at a bawdy-
house, the testimony of the pro-
prietor of such house that de-
ceased did not engage the rooms
at her house was irrelevant and
incompetent to contradict the
daughter's testimony that he did
engage the rooms. State v. Tid-
well, 84 S. E. 778, 100 S. C. 248.
34. A cross-examination of a de-
fendant, being tried for murder,
while on the stand as a wit-
ness, upon collateral, immaterial
and irrelevant matters, which
prejudices the defendant's cause
and tends to prevent a fair trial
thereof, is reversible error. Id.
35. The cross-examination of the
daughter of a defendant, on
trial for murder, upon collat-
eral, immaterial and irrelevant
matters, which exposed her to
the contempt and ridicule of the
jury, and prejudiced the de-
fendant's cause and tended to
prevent a fair trial thereof, is
reversible error. Id.

36. The contradiction of a witness
as to an immaterial statement
as to a collateral matter is both
irrelevant and incompetent. Id.
37. The admission of irrelevant
testimony which tends to preju-
dice the defendant's cause, and
prevent a fair trial thereof, is
reversible error. Id.

EXCEPTIONS.

See Appeal and Error.

1. Under rule 5 (35 S. E. 5),
exceptions should state the
grounds of the motion for new
trial and the requests to charge,
and then state in the record
that the exceptions correctly
stated the grounds of motion
and requests to charge. Holden
v. Cantrell, 84 S. E. 826, 100 S.
C. 265.

2. Exceptions are objectionable
when they incorporate at length
the testimony to which objection
is made. Holden v. Cantrell,
81 S. F. 826, 100 S. C. 265.
3. Exceptions, argumentative in
form, are objectionable. Hol-

den v. Cantrell, 84 S. E. 826,
100 S. C. 265.

FEDERAL EMPLOYERS'

LIABILITY ACT.

1. When the pleadings show facts
bringing an action within the
Federal Employers' Liability
Act, it must be tried under that
law. Mims V. Atlantic Coast
Line R. Co., 85 S. E. 372, 100
S. C. 375.

2. On the second trial of a death
action, defendant cannot, after
the close of plaintiff's evidence,
show, without amending, that
deceased was engaged in inter-
state commerce at his death, so
that the Federal Employers'
Liability Act was applicable.

Mims v. Atlantic Coast Line R.
Co., 85 S. E. 372, 100 S. C. 375.
3. A complaint alleging that plain-

tiff worked with a bridge force
as bridge carpenter on an in-
terstate railroad states a cause
of action, under Federal Em-
ployers' Liability Act. Camp v.
Atlanta & C. A. L. Ry. Co., 84
S. E. 825, 100 S. C. 294.
4. In an action by an employee
for injuries, evidence held to
require submission to the jury
of the issue of employer's neg-
ligence. Camp v. Atlanta & C.
A. L. Ry. Co., 84 S. E. 825, 100
S. C. 294.

5. Where the issue was whether
the work, at the time of injury
to a railroad employee, was in-
terstate or intrastate commerce,
the Court must charge the law
as to both. Camp v. Atlanta &
C. A. L. Ry. Co., 84 S. E. 825,
100 S. C. 294.

FIRE INSURANCE.

1. Under Civil Code 1912, sec
2718, procuring of additional
insurance without the consent
of the insurer and in excess of
the insurable value agreed in the
policy held to avoid the policy.
Wynn v. Caledonian Ins. Co.,
84 S. E. 306, 100 S. C. 47.

FINES.

1. The provision in the Constitu-
tion against excessive fines has

no reference to the forfeiture
of goods used in violating the
criminal law. State v. Hondros,
84 S. E. 781, 100 S. C. 242.
FIXTURES.

See Deeds.

1. The manner of annexation is
not conclusive whether it is a
fixture; the intention usually
controlling, though all the cir-
cumstances should be consid-
ered. Saye v. Hill, 84 S. E. 307,
100 S. C. 21.

2. Where structure on land is for
some temporary purpose exter-
nal to the land, and the land is
used only as a foundation be-
cause some foundation is neces-
sary, the structure and its be-
longings are not fixtures. Saye
v. Hill, 84 S. E. 307, 100 S.
C. 21.

3. Houses built under license or
lease and machinery installed
therein with appearance of per-
mancy held not fixtures if built
and installed under agreement
for and with intention to re-
move. Saye v. Hill, 84 S. E.
307, 100 S. C. 21.

4. Where owner of land re-
covered possession by decree
authorizing defendant to re-
move buildings within specified
time, the buildings and the ma-
chinery therein held not fixtures,
though not removed within such
time. Saye v. Hill, 84 S. E.
307, 100 S. C. 21.

FOREIGN RECEIVERS.

1. The appointment of a receiver
for a bankrupt after adjudica-
tion in another district and
State is not effective prior to
ancillary proceedings in this
State, to protect such receiver
from actions by resident credi-
tors in the Courts of this State
upon contracts made with such
receiver, and to be performed
within this State. Guimarin v.
So. L. & T. Co., 84 S. E. 298.
100 S. C. 12.

2. A subcontractor residing in this
State, undertaking to complete
a contract to be performed here
in reliance upon promise to pay

therefor, by a foreign receiver
of a principal contractor, who
had been adjudicated bankrupt
in another State and district,
may maintain in the Courts of
this State an action upon such
promise against such receiver,
and attach credits in this State
due such receiver. Id.

FORFEITURES.

1. Where a policy of insurance
stated, as required by Civil
Code 1912, section 2718, the
value of the property insured
and amount of insurance to be
carried thereon, and contained
a stipulation that the policy
should be void if the insured
then had, or should thereafter
procure, other insurance on
same property, a charge that
procuring additional or further

insurance in excess of amount
stated in the policy and agreed
upon by the insured and insurer
without the consent of the in-
surer would avoid the policy,
unless the insurer waived the
forfeiture, approved. Wynn v.
Caledonian Ins. Co., 84 S. E.
305, 100 S. C. 47.

2. The provision in the Constitu-
tion against forfeiture of estates
has no
reference to fines and
forfeitures as penalties for vio-
lation of the criminal law. State
v. Hondros, 84 S. E. 781, 100
S. C. 242.

2. Cr. Code 1912, sec. 699, pro-
viding for the forfeiture of
goods exposed for sale on Sun-
day, does not violate Const., art.
I, sec. 4, declaring that the Gen-
eral Assembly shall make no
law respecting an establishment
of religion. State v. Hondros,
84 S. E. 781, 100 S. C. 242.
3. The term "punishment" in the
constitutional provisions as to
the jurisdiction of magistrate's
Courts, does not include "for-
feitures" prescribed by the
criminal law. Id.

4. The Criminal Code, section 699,
does not make the selling of
goods on Sunday a crime pun-
ishable by fine or imprisonment,
but provides for the forfeiture
of the goods exposed for sale,

under a judgment in rem, after
notice to the vendor. Id.
5. The law confers jurisdiction on
magistrate's Courts to proceed
against the goods exposed for
sale on Sunday and to summon
a vendor, and render judgment
in rem for the forfeiture of the
goods. Id.

6. Const., art. V, sec. 21, gives
magistrates jurisdiction, to be
prescribed by the General As-
sembly, not to extend to cases
where the punishment exceeds a
fine of $100 or imprisonment for
60 days. Cr. Code 1912, sec. 20,
gives them jurisdiction of all
offenses subject to the penalties
of fine or forfeiture not exceed-
ing $100; and section 699, et
seq., provides for the forfeiture
of goods exposed for sale on
Sunday and gives to magistrates
authority to summon any
offender, and, upon proof, to
issue warrant to seize and sell
such goods. Held, that the
magistrate had jurisdiction to
forfeit goods exposed for sale
on Sunday; the term "punish-
ment" not including a
for-
feiture. Id.

FORMER JEOPARDY.

1. Where accused, after shooting
a person in his dwelling house
and striking him on the head
with an axe, set fire to the
dwelling house, his conviction
for murder, under an indict-
ment charging a killing with a
pistol and an axe, did not bar
a prosecution for arson, under
Const., art. I, sec. 17, providing
that no person shall be subject
for the same offense to be twice
put in jeopardy of life or lib-
erty. State v. Rogers, 84 S. F.
304, 100 S. C. 77.