certificates of stock, or that the
contract might be continued at
pleasure by mutual consent upon
same terms as theretofore, is
ambiguous; and in determining
whether the holder of this stock
is a creditor or stockholder, parol
testimony as to the previous col-
loquium, and previous writings
which led up to the contract;
and a subsequent writing show-
ing the construction given the
contract by the parties, held ad-
missible in evidence. Herndon
v. Wardlaw, 84 S. E. 112, 100 S.
C. 1.

8. Code, sec. 4106, requires a mort-
gage of crops to describe or
mention the lands whereon the
crops are to be raised, in order
that the record may constitute
notice to subsequent purchasers
for value. Kimbrell v. Mills &
Young, 84 S. E. 996, 100 S. C.

443.

9. A reference to "my crops" in a
mortgage is not a compliance
with the provisions of Civil
Code, sec. 4106, requiring the
lands whereon the crops are to
be raised to be described or
mentioned. Id.

10. Under Civ. Code 1912, sec. 4106,
providing that no mortgage on
any crop or crops shall be
good and effective to convey to
the mortgagee any interest there-
in, unless the land whereon such
crops are to be raised shall be
described or mentioned in said
mortgage, which said mortgage,
when so taken and indexed or
recorded as required by law,
shall constitute a lien upon the
crops therein described in pref-
erence to all subsequent mort-
gages, where a third person exe-
cuted to plaintiff a chattel mort-
gage upon "all my crops of cot-
ton, etc., and all other crops of
whatever character now planted
and to be planted by me during
the year 1913," which was duly
recorded previous to any sale of
such crops by the mortgagor,
such mortgage had no efficacy
to give plaintiff title as against
a purchaser in good faith and
for value, since the land was not
described or mentioned in the

mortgage, while the evident pur-
pose of the statute was to re-
quire its identification with rea-
sonable certainty. Id.

11. The words "described" and
"mentioned," used in Civil Code
1912, sec. 4106, are not syno-
nyms; and where a mortgage on
crops mentions by reference the
lands whereon the crops are to
be
raised without describing
such lands, the mortgage is not
void as in violation of said stat-
ute. Livingston v. S. A. L. Ry.,
84 S. E. 303, 100 S. C. 18.

MORTGAGE OF CROPS.

See Mortgages, supra. Kimbrell
v. Mills & Young Co., 84 S. E.
996, 100 S. C. 443; Livingston v.
S. A. L. Ry., 84 S. E. 303, 100
S. C. 18.

MUNICIPAL BONDS.

1. Where a petition by freeholders
Under Civil Code 1912, section
3015, prayed for an election on
the question of the issuance of
bonds for the construction alone
of waterworks and sewerage
systems, and the town council
ordered an election on the ques-
tion of issuing such bonds for
the construction and mainte-
nance of such systems, and it
appeared, after a vote in favor
of such issuance, that the cost
of construction would probably
consume the entire proceeds_of
the bond issue, the variance be-
tween the petition and submis-
sion did not affect the validity
of the bonds as a debt of the
corporation, and the moneys ob-
tained upon the bonds may be
used for the purpose of con-
structing such systems. Connelly
v. Beason, 84 S. E. 297, 100 S.
C. 74.

MUNICIPAL CORPORATIONS.
1. Where freeholders petitioned
council to order election on is-
suance of bonds for "construc-
tion," order of election for "con-
struction and maintenance" was
not such a variance as affected
validity of bonds. Connelly ▼.

Beason, 84 S. E. 297, 100 S. C.
74.

2. An incorporated town is a com-
plete entity, and the legislature
having recognized the town of
Batesburg as a municipal cor-
poration in Lexington county,
and that county having voted to
establish dispensary, the county
board of control for Lexington
county may establish a dispen-
sary in that town. Croxton v.
Truesdale, 75 S. C. 418, 56 S. E.
45, followed. Cooner v. Good-
win, 84 S. E. 990, 100 S. C. 428.
3. Where a municipal corporation
has received the benefits of a
transaction, and a claim there-
for is not enforceable at law, be-
cause of some irregularity, the
legislature may compel payment
of such claim out of taxes levied
for that purpose. Farrish-Staf-
ford Co. v. Lexington Co., 84 S.
E. 1002, 100 S. C. 311.

MUTUAL WILLS.

1. To establish a contract for the
making of mutual wills by par-
ties, one of whom is deceased,
the evidence must be definite,
certain, clear and convincing.
Dicks v. Cassels, 84 S. E. 878,
100 S. C. 341.

NAVIGABLE WATERS.

1. A nagivable stream, within Civ.
Code 1912, sec. 2132, is not a
highway, within section 1972,
authorizing an action for inju-
ries caused by defects in a high-
way. Speights v. Colleton Coun-
ty, 84 S. E. 873, 100 S. C. 304.

NEGLIGENCE.

See Master and Servant; Tele-
graphs and Telephones.

1. Where there is evidence to sus-
tain any one of the several spe-
cifications of negligence in the
complaint, the case is for the
jury. Camp v. Atlanta & C. A.
L. Ry. Co., 84 S. E. 825, 100 S.
C. 294.

2. Where there was evidence that
the loading of lumber in a gon-
dola car is dangerous, and that
plaintiff while engaged in SO

loading such car under the di-
rection of the defendant's supe-
rior officer, and in its employ,
was injured by a piece of tim-
ber which fell on his foot and
crushed it; the direction of a
verdict for the defendant in an
action to recover damages for
such injury was erroneous.
Camp v. A. & C. A. L. Co., 84
S. E. 825, 100 S. C. 294.
3. Where an employee of consignee
engaged in unloading cars of
coal placed by a railroad com-
pany on a spur track at an in-
dustrial plant is injured in an
accident occasioned by the cars
from some unexplained cause be-
coming uncoupled and running
off the end of the track, and the
testimony does not tend to sup-
port the allegations that the de-
fendant either negligently pro-
vided defective stop block on the
track, negligently failed to have
cars on engine pushing same
equipped with proper brakes, or
negligently operated the cars on
the track or did anything which
caused the uncoupling of the
a nonsuit was properly
granted. Burford v. S. A. L.
Ry., 84 S. E. 712, 100 S. C. 117.
4. There being testimony that a
street car from which a passen-
ger attempted to alight was mov-
ing very slowly, the question
whether she was negligent in so
Yar-
attempting, is for the jury.
borough v. Columbia Ry., Gas &
Electric Co., 84 S. E. 33, 100 S.
C. 33.

cars,

5. In an action for the wrongful
killing of plaintiff's intestate,
whether or not defendant's op-
eration of its street car over a
switch at a greater rate of speed
than four miles an hour, in vio-
lation of its own rule, was negli-
gence, was an issue for the jury,
so that instruction that it was
negligence per se was erroneous
as an instruction on the facts.
Kelly v. Columbia Ry, etc. Co.,
84 S. E. 423, 100 S. C. 113.

6. A street railroad's violation of
an ordinance, fixing a rate of
speed over switches, is negligence
per se. Id.

7. A common carrier may not stip-
ulate for exemption from liabil-
ity for its negligence. Carter v.
So. Ry. Co., 84 S. E. 999, 100 S.
C. 403.

8. A person being suddenly con-
fronted with a situation which
he honestly believed to be one
of extreme peril, and the appear-
ances such as to justify a per-
son of ordinary prudence and
reason in reaching that conclu-
sion, he would not be guilty of
negligence in acting on such ap-
pearances. Fitzgerald v. Case
Threshing Co., 84 S. E. 991, 100
S. C. 435.

NEW TRIALS.

1. As regards right to new trial,
evidence held not newly discov-
ered, but cumulative. Yarbor-
ough v. Columbia Ry., Gas &
Electric Co., 84 S. E. 308, 10 S.
C. 32.

2. An order granting new trial be-
cause the verdict was capricious
and against the weight of the
testimony, and because a tele-
gram was not an acceptance of
an offer, held based on the
ground that the verdict was con-
trary to the weight of the evi-
dence. Watson v. Paschall, 84
S. E. 531, 100 S. C. 281..
3. There being testimony as to
facts from which an inference
could be drawn that a bastard
child was likely to become a pub-
lic burden, motion for new trial
was properly refused. State v.
Adams, 84 S. E. 368, 100 S. C.
43.

4. Where a general verdict for
damages is rendered upon issues
as to the commission of both a
trespass and a conversion, and
the issue as to conversion was
erroneously submitted to the
jury, a new trial should be grant-
ed. Saye v. Hill, 84 S. E. 307,
100 S. C. 21.

5. Where practically the same evi-
dence is presented on a second
as upon a former trial, on which
the Supreme Court held it error
to grant a nonsuit, this ruling
became the law of the case, and
a renewal of the motion for non-

suit is properly refused. Mims
v. A. C. L. R. R. Co., 85 S. E.
372, 100 S. C. 375.

6. Where an appeal from an order
granting a new trial in a crimi-
nal case involves only questions
of law, the Court may render
judgment absolute on appeal;
but where questions of fact are
involved, which prevent the entry
of judgment absolute, the ap-
peal will be dismissed. Town of
Denmark v. Corley, 84 S. C. 884,
100 S. C. 433.

7. The power to grant or refuse
a new trial is vested exclusively
in the Circuit Court, and its
order thereon can be impeached
on appeal only for error of law
or abuse of discretion. State v.
Griffin, 84 S. E. 876, 100 S. C.
331.

8. The failure of a prosecuting at-
torney to offer testimony as to
facts known, or which could have
been ascertained by counsel for
defendants, does not warrant the
conclusion that the testimony
was suppressed with a sinister
motive, and was not prejudicial
to defendants. State v. Griffin,
84 S. E. 876, 100 S. C. 331.
NONSUIT.

See Issues, Supra.

1. Where an inference that a mes-
sage was deliberately changed in
transmission may be drawn from
the evidence, a nonsuit of action
for punitive damages was prop-
erly refused. Painter v. W. U.
Tel. Co., 84 S. E. 293, 100 S. C.
65.

2. Where an employee of consignee
engaged in unloading cars of
coal placed by a railroad com-
pany on a spur track at an in-
dustrial plant is injured in an
accident occasioned by the cars
from some unexplained cause be-
coming uncoupled and running
off the end of the track, and the
testimony does not tend to sup-
port the allegations that the de-
fendant either negligently pro-
vided defective stop block on the
track, negligently failed to have
the cars on engine pushing same
equipped with proper brakes, or

negligently operated the cars on the track or did anything which caused the uncoupling of the cars, a nonsuit was properly granted. Burford v. S. A. L. Ry., 84 S. E. 712, 100 S. C. 177. 3. Where there is evidence on questions presented in an action, they are properly submitted to the jury and nonsuit refused. Moore v. Marion Cotton Oil Co., 85 S. E. 52, 100 S. C. 499.

4. Where practically the same evidence is presented on a second as upon a former trial, on which the Supreme Court held it error to grant a nonsuit, this ruling became the law of the case, and a renewal of the motion for nonsuit is properly refused. Mims v. A. C. L. R. R. Co., 85 S. E. 372, 100 S. C. 375.

5. The reading of extracts from the opinion of the Supreme Court on a former appeal reversing an order of nonsuit in refusing a renewal of such motion on a second trial was not a part of his charge, nor prejudicial to defendant. Id.

6. Where there is testimony tending to sustain plaintiff's cause of action a nonsuit is properly refused. Sanders V. Landreth Seed Co., 84 S. E. 880, 100 S. C. 389.

NOTICE.

or

1. Code, sec. 4106, requires a mortgage of crops to describe mention the lands whereon the crops are to be raised, in order that the record may constitute notice to subsequent purchasers for value. Kimbrell v. Mills & Young Co., 84 S. E. 996, 100 S. C. 443.

2. A reference to "my crops" in a mortgage is not a compliance with the provisions of Civil Code, 4106, requiring the lands whereon the crops are to be raised to be described or mentioned. Id. 3. When a mortgagee records a chattel mortgage in the county in which the mortgagor resides at the time it is made and delivered it is constructive notice to the world. Brown & Strib

ling v. Rankin, 84 S. E. 1001, 100 S. C. 371.

4. Testimony that a subsequent purchaser, having only constructive notice of a chattel mortgage given by a former owner of personal property, searched the records to ascertain whether a third person, in whose possession the property was found, had given a mortgage upon this property, is irrelevant in an action by the first mortgagee to recover the property. Brown & Stribling v. Rankin, 84 S. E. 1001, 100 S. C. 371.

5. A charge that if the jury found that the property in dispute had been sold by plaintiffs to B, and that they failed to take, and record, a chattel mortgage from B, a subsequent purchaser for value from B would acquire a good title to such property; held, erroneous where the uncontradicted evidence shows that the sale of such property by plaintiffs was to A from whom they took a chattel mortgage, recorded in due time. Id.

PARTIES.

1. Where a Court having jurisdiction of the subject matter has acquired jurisdiction of the person, it retains such jurisdiction notwithstanding the subsequent imprisonment of defendant in the State prison; and such defendant waives his right to appear by guardian ad litem, by neglecting to apply for such appointment, and after his release from imprisonment appearing by counsel and contesting the action upon its merits. Cobb v. Garlington, 84 S. E. 302, 100 S. C.

51.

PARTITION.

See Judgment.

1. Where, in a partition suit, defendant raises question of title, it is incumbent on plaintiff to prove title before partition can be had. Campbell v. Stewart, 84 S. E. 415, 100 S. C. 144. 2. Where plaintiff in partition denies the title set up by defendant

574

238.

2. In a prosecution for breach of trust with fraudulent intent, evidence held to take to the jury the question, whether a partnership existed between defendant and prosecutor which would be a defense to the prosecution. Id. 3. "Copartnership" is a factitious relationship between two or more persons, and its existence depends on the agreement between the parties and the agreement may be established by parol. Id. 4. The statement in Price v. Middleton & Ravenel, 75 S. C. 108, 55 S. E. 156, as to what constitutes a partnership followed and approved. Id.

1. A passenger suing for a person-
al injury and for the malprac-
tice of the carrier's surgeon, in
treating him for the injuries, has
the burden of proving the in-
the surgeon.
compentency of
Easler v. Columbia Ry., Gas &
Electric Co., 84 S. E. 417, 100 S.
C. 96.

2. A carrier employing a surgeon to treat gratuitously passengers sustaining personal injuries is not liable where the surgeon is reasonably competent, though he neglects a passenger sustaining an injury. Id.

3. Though a carrier must call a surgeon to treat an injured passenger in a sudden emergency, it need not do so where the natural guardian of an infant injured passenger is present and dissents from its calling a surgeon. Id.

4. Where a carrier injured an infant passenger and refused to surrender him to his parent, but insisted on taking him to the carrier's surgeon, who treated him, the carrier was liable for the malpractice of the surgeon, without reference to its exercise of care in employing a competent surgeon. Id.

PLATS.

1. It is error to exclude the testimony of a witness, who assisted in making a plat in evidence, tending to show that it was made for a particular purpose, and was not accurate with regard to