EXECUTORS AND ADMINIS- TRATORS.
1. Where testatrix lived in and owned real estate in G. county at time of her death, and her will was duly filed for probate there, suit to remove executor, brought in C. county, should have been removed to G. county, under Code Civ. Proc. 1912, secs. 40, 48. Smith v. Heyward (93 S. E. 195), 107 S. C. 543.
EXECUTORY DEVISE.
1. An estate is never an execu- tory devise, if it can take effect as a remainder. Pearson v. Easterling (92 S. E. 619), 107 S. C. 265.
FAILURE OF CONSIDERA- TION.
See Contracts. Wait v. Williams (91 S. E. 969), 107 S. C. 32.
FILING PAPERS.
See Courts. Palmer v. Simons (92 S. E. 23), 107 S. C. 93.
See Railroads. Williams v. N. W. R. R. Co. (93 S. E. 183), 107 S. C. 524.
See Criminal Law. State v. Turn- age (93 S. E. 182), 107 S. C. 479.
FORFEITURES.
See Intoxicating Liquors. Seig- nious v. Limehouse (93 S. E. 193), 107 S. C. 546. (Also see Cir- cuit Decree in Appendix.)
FORECLOSURES.
See Mortgages. Farmers & Mer- chants Bank v. Rivers (92 S. E. 753), 107 S. C. 204; Christensen v. Griffin (93 S. E. 143), 107 S. C. 456.
1. Cotton ticket, reciting sale and giving weights of cotton, held subject to forgery. State v. Walton (93 S. E. 5), 107 S. C. 353.
2. In prosecution for forging cot- ton ticket, evidence held not to show that cotton weigher, and
not defendant, altered figures of weights thereon. State v. Wal- ton (93 S. E. 5), 107 S. C. 353. 3. In prosecution for forging cot- ton ticket, evidence held to war- rant finding that defendant made alterations thereon. Ib.
1. In action for fraud and deceit in procuring contract for labor to be performed by defendant, whether there was evil intent on defendant's part, or whether it acted in good faith, held for jury. Gobbel v. Columbia Ry., Gas & Electric Co. (93 S. E. 137), 107 S. C. 367.
2. A fraud action cannot be main- tained, where plaintiff had abundant opportunity to ascer- tain the truth. Whitman v. Sea- board Air Line Ry. (92 S. E. 861), 107 S. C. 198.
3. Where there was no proof that the prediction of defendant rail- road's physicians that plaintif would entirely recover was not carefully made, the evidence is insufficient to sustain a finding of fraud, where plaintiff had nearly two years to ascertain facts before his cause of action was outlawed. Whitman v. Sea- board Air Line Ry. (92 S. E. 861), 107 S. C. 198.
See Torts. National Bank etc. v. So. Ry. Co.-Ca. Div. (91 S. E. 972), 107 S. C. 28.
See Creditor's Suit. McClary- Broadway Co. v. Dingle (92 S. E. 1051), 107 S. C. 384.
FRAUDS, STATUTE OF. 1. An oral agreement by the daughter of deceased to pay for certain funeral equipment and services performed in connection with the funeral is not within the provision of the statute of frauds as to actions on a special promise to answer for the debt of another, where there is no con- tract whereby any other person became obligated to pay for such equipment and services. Fox v. Weeks v. Laney (92 S. E. 1044), 107 S. C. 318.
FRAUDULENT CONVEY- ANCES.
1. In creditors' bill against hus- band and wife to set aside deeds to wife for fraud on theory that lands were purchased with hus- band's money, evidence held not to show that husband's money bought lands or any fraud in pur- chases. Southern States Phos- phate & Fertilizer Co. v. Weekley (93 S. E. 190), 107 S. C. 511. 2. The burden is on plaintiff suing to foreclose a mortgage executed by one to whom property had been conveyed in fraud of the grantor's creditors to prove, as against the creditors, that she was a bona fide mortgagee with- out notice of the fraud. Smith v. Faust (92 S. E. 24), 107 S. C.
3. As to voluntary conveyances. See DeWitt v. Dowling (91 S. E. 1040), 107 S. C. 51.
FRAUDULENT MISREPRE-
See Torts. National Bank v. So. Ry.-Ca. Div. (91 S. E. 972), 107 S. C. 28.
See Gaming. Gwathmey v. Bur- gess (93 S. E. 1), 107 S. C. 332.
1. Under Cr. Code 1912, sec. 747, subd. 2, and by its specific pro- visions, the term of the State game warden is four years only, and it cannot be extended. Gibbes v. Richardson (92 S. E. 333), 107 S. C. 191.
2. Term of State game warden held not extended by Const., art. XVII, sec. 11, subd. 6, as to officers holding over until ap- pointment of their successors. Ib.
3. Assuming office of State game warden to be public trust, so that the Court should not permit it to remain vacant, it may be de- clared vacant in view of Civ. Code 1912, sec. 695, providing for filling a vacancy therein by the Governor on nomination of the Audubon Society. Ib.
4. In view of Cr. Code 1912, sec. 747, subd. 2, as to appointment of the game warden, a nominee who fails to show that his name was sent to the Governor by the Audubon Society can have no title to the office. Ib.
1. In action to recover balance due on transaction relating to futures in cotton, instruction on intent of parties as affecting validity, held erroneous under statute. Gwathmey & Co. V. Burgess (93 S. E. 1), 107 S. C.
See Searches and Seizures. State v. Harley (92 S. E. 1034), 107 S. C. 304.
1. If the donor of cetrificates of deposit merely intended that the donee should have the money at his death, there was no gift to her in his lifetime. Sawyer v. Mabus (92 S. E. 1029), 107 S. C. 369.
1. In order for a road established by user to be a public road for the obstruction of which an indict- ment will lie, it must be shown that it terminated on both ends in a public road or public place. State v. Allen (92 S. E. 193), 107 S. C. 132.
2. In a prosecution for the ob- struction of a road which the State claimed had been estab- lished as a public road by user, where there was evidence that the road led through the land of another who had built a fence and house across it, an instruc- tion that the obstruction of the road by the other did not ex- cuse defendant was misleading, since, if the obstruction was placed across the road by the other before the road had become a public road, it prevented it from thereafter becoming a pub- lic road. Ib.
3. Liability of municipal corpo- ration for defects in streets. Caston v. City of Rock Hill (92 S. E. 191), 107 S. C. 126; Sexton
v. City of Rock Hill (93 S. E. 180), 107 S. C. 506.
1. Under Const., art. III, sec. 28, a homestead is not exempt from execution for purchase price of improvements made thereon. Christensen v. Griffin (93 S. E. 143), 107 S. C. 456.
2. A tenant in common is entitled to a homestead to the amount of $1,000, although it cannot be al- lotted to land set off by metes and bounds, which is not subject to execution and cannot be in- vaded by legal process; as the homestead right is in the title. Ex parte Beaty (92 S. E. 1052), 107 S. C. 364.
1. The general reputation of vic- tim of homicide for violence may be shown, but not particular acts of violence. State v. Hiers (93 S. E. 124), 107 S. C. 411.
2. In a murder trial, where it ap- pears that after deceased was shot he was in a semiconscious condition from which he reacted somewhat, subsequent dying declaration is inadmissible until it is proven that declarant's con- dition, causing disability, had been removed. State v. Quick (93 S. E. 127), 107 S. C. 435.
4. Evidence held sufficient to au- thorize a reasonable influence that defendant aided and abetted in a killing. State v. Graham (92 S. E. 188), 107 S. C. 139.
HUSBAND AND WIFE. 1. There is no presumption of law that when married woman pur- chases property from third per- son husband furnished money. Southern States Phosphate & Fer- tilizer Co. v. Weekley (93 S. E. 190), 107 S. C. 511.
2. Where wife allowed husband to mortgage her personal property, only ones who can complain are
mortgagees. Southern States Phosphate & Fertilizer Co. v. Weekley (93 S. E. 190), 107 S. C.
See Marriage of Slaves. Mims v. Jones (91 S. E. 987), 107 S. C. 81.
INDICTMENTS.
1. If the allegations of an indict- ment were sufficient to constitute any offense whatever, demurrer thereto was properly overruled. State v. Cole (92 S. E. 624), 107 S. C. 285.
1. On demurrer to complaint for temporary injunction, Court had no right at chambers on sustain- ing demurrer to make order dis- missing complaint. Dallas v. In- man (93 S. E. 8), 107 S. C. 402. 2. A Circuit Judge at chambers on application for a temporary injunction cannot try the case on its merits and make a final order. Kinder v. Atlantic Coast Lumber Corp. (93 S. E. 7), 107 S. C. 404.
3. Order on application for tem- porary injunction is not conclu- sive of merits of case. Kinder v. Atlantic Coast Lumber Corp. (93 S. E. 7), 107 S. C. 404.
4. Subscribers to a school build- ing fund are entitled to injunc- tion to restrain the proposed re- moval of the building, though the trustees and the school dis- trict are solvent, since it would be impossible to prove or esti- mate the damages caused by the loss of plaintiff's right to have a school maintained at that place, and, therefore, the remedy at law is inadequate. McCormac v. Evans (92 S. E. 19), 107 S. C. 39. 5. Wrongful acts resulting in the destruction of plaintiff's prop- erty or any interference with his use of it may be prevented by injunction. Ib.
6. The right of subscribers to a school building fund to prevent the demolition and removal of the building cannot be denied because they have adjoining lands on which they can build a schoolhouse. Ib.
1. In action on life policy, held that there was no payment of first premium. Wood v. South- eastern Life Ins. Co. (93 S. E. 197), 107 S. C. 537.
2. Where local council of frater- nal society remitted full amount of assessments due which was received and accepted, held that national council could not com- plain after member's death that he had not paid local council. Outlaw National v. Council, Junior Order United American Mechanics (92 S. E. 469), 107 S. C. 225.
3. Tender back of premiums paid, made after commencement of ac- tion on fire policy, could not by operation of law rebut inference of waiver of conditions from failure to give notice of concella- tion; but the question whether there was waiver should have been submitted to jury. Porter v. Dixie Fire Ins. Co. (93 S. E. 141), 107 S. C. 393.
4. In view of Civ. Code 1912, sec. 2755, the custom of a local lodge not to declare forfeiture of a mutual benefit policy upon de- linquency did not constitute waiver, especially where the con- stitution prohibited such waiver and was agreed to by the in- sured. Sternheimer v. Order of United Commercial Travelers of America (93 S. E. 8), 107 S. C. 291.
5. In view of Code Civ. Proc. 1912, sec. 137, subd. 7, providing that an action on a life policy may be brought within six years, a constitutional provision of a mutual benefit order that no ac- tion shall be brought after six months from disallowance of claim does not bar an action un- til after six years. Sternheimer v. Order of United Commercial Travelers of America (93 S. E. 8), 107 S. C. 291.
6. In action on mutual benefit cer- tificate, allegation that insured was in good standing being un- necessary, it need not be proved by plaintiff. Sternheimer v. Order of United Commercial
Travelers of America (93 S. E. 8), 107 S. C. 291.
7. The insurer under a mutual benefit policy is bound to allege and prove delinquency of insur- ed to establish forfeiture of the policy. Ib.
8. Where defendant pleaded de- linquency, the burden of prov- ing waiver of condition as to payment was on plaintiff. Stern- heimer v. Order of United Com- mercial Travelers of America (93 S. E. 8), 107 S. C. 291.
9. Evidence held to warrant re- fusal to submit to jury question of waiver by insurer under mu- tual benefit policy of condition as to payment of premium. Stern- heimer v. Order of United Com- mercial Travelers of America (93 S. E. 8), 107 S. C. 291. 10. Evidence as to violation of policy conditions. Conner v. Grand Lodge (92 S. E. 1032), 107 S. C. 308; Fowler v. N. Y. Life Ins. Co. (91 S. E. 1043), 107 S. C. 21.
11. Defense that insured was ad- dicted to excessive use of liquor. Fowler v. N. Y. Life Ins. Co. (91 S. E. 1043), 107 S. C. 21.
INTOXICATING LIQUORS.
1. Under dispensary law, defend- ant, who purchased liquor at dis- pensary, had right to carry it to his home in dry county, provid- ing it was intended for personal State v. Burns (93 S. E. 194), 107 S. C. 542.
2. Where mortgagee did not have knowledge of, or consent to, use of automobile by mortgagor for illegal transportation of liquor, his interest could not be con- fiscated. Seignious v. Limehouse (93 S. E. 193), 107 S. C. 546. 3. Under Acts 1915, p. 140, secs. 1, 7, Cr. Code, 1912, sec. 825 (the dispensary act of 1894), Const. 1895, art. V, secs. 18, 21, and Const. 1868, sec. 19, Court of General Sessions held to have jurisdiction to try defendant charged with violating acts 1915, p. 140, sec. 1, relating to trans- portation of liquor. State v.
Morelli (92 S. E. 475), 107 S. C. 262.
4. The gallon a month law did not change existing rights to bring whiskey into State, except that it limited amount to gallon per month for personal use, and re- quired liquor to be delivered to consignee. State v. Allston (92 S. E. 177), 107 S. C. 486.
5. Private carrier for hire had same right to bring liquor into State under the gallon a month law as common carrier, such as railways and express companies, subject to same law and re- strictions. Ib.
6. Person ordering liquor, not ex- ceeding gallon a month, to be brought into State for personal consumption, had choice of bringing it in by private carrier for hire or common carrier. 7. A private carrier could, for hire or as a favor, bring into the State not more than one gallon of liquor for another person's personal use during one calendar month wtihout intent to violate the law. State v. Gens (93 S. E. 139), 107 S. C. 448.
8. Chief element in offense of stor- ing alcoholic liquors is unlawful- ness of storing, intent of him who has liquor. State v. Tooley (93 S. E. 132), 107 S. C. 408. 9. If defendant's act in storing liquors be unlawful, Court will not measure with nicety quan- tity defendant had in his safe. Ib.
10. In prosecution for storing alco- holic liquors, Supreme Court may not infer as matter of law that discovery of very small quantity in defendant's safe on three separate occasions within six months did not amount to storing. State v. Tooley (93 S. E. 132), 107 S. C. 408.
11. Act Feb. 19, 1916 (29 St. at Large, p. 704), limiting punish- ment of Court to imprisonment for all persons who violate any of provisions of any law relat- ing to or regulating sale of in- toxicating liquors, does not ap- ply to sales only, but to unlawful
storing as well. State v. Tooley (93 S. E. 132), 107 S. C. 408. 12. By Cr. Code 1912, sec. 839, Court is empowered in its dis- cretion either to fine or imprison person convicted of unlawful storing of intoxicants, denounced by act Feb. 19, 1916 (29 St. at Large, p. 704). Ib.
13. Offense of storing and keeping in possession contraband liquors held not committed by receiving such liquors, and having them in possession but a moment before they were seized. State v. Free- man (93 S. E. 13), 107 S. C. 431. 14. In view of Cr. Code 1912, sec. 825, providing that all liquors except those purchased from a county dispensary for a lawful use and those passing through the State consigned to points be- yond the State shall be deemed contraband and may be seized in transit without warrant, where a defendant purchased liquor for lawful use from a coun- ty dispensary which had the legal right to sell it to him and trans- ported it with his personal bag- gage to another county not hav- ing a dispensary, he was not guilty of the offense of transport- ing contraband liquor. State v. Aiken (92 S. E. 1043), 107 S. C. 359.
15. Acts 1915, p. 140, making it un- lawful for any person, firm, cor- poration, or company to ship liquors in larger quantities than one gallon per month, held not to provide for any punishment for a corporation violating the act, since section 7 provides the punishment for "any person" violating the act. State v. So. Express Co. (92 S. E. 1054), 107 S. C. 349.
16. Where, in a prosecution for unlawfully storing contraband liquor, there was sufficient evi- dence for the jury to determine whether the liquor was legally obtained by defendant for an illegal purpose, or whether it was illegally obtained for a legal purpose, the Court properly re- fused to direct a verdict of "not guilty," on the ground that the
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