evidence failed to show that the
liquor was contraband, and that
the possession and storing were
unlawful and illegal. State v.
Gorse (92 S. E. 1031), 107 S. C.
344.
17. Insured addicted to excessive
use of. Fowler v. N. Y. Life Ins.
Co. (91 S. E. 1043), 107 S. C. 21.
ISSUE FOR JURY.
1. In action for injuries to serv-
ant. Nelson v. A. G. & P. Co.
(92 S. E. 149), 107 S. C. 1. Also,
Kelly v. Keystone Lumber Co. (91
S. E. 978), 107 S. C. 96; Strick-
land v. So. Ry. Co. (93 S. E. 187),
107 S. C. 522.
2. As to credibility of witnesses.
Ex parte McKie (91 S. E. 978),
3. As to testamentary capacity.
Ex parte McKie (91 S. E. 978),
107 S. C. 57.
4. As to failure of consideration.
Wait v. Williams (91 S. E. 969),
107 S. C. 32.
5. As to negligence. Strickland
v. So. Ry. Co. (93 S. E. 187), 107
S. C. 522; Porter v. Bennettsville
etc. Ry. (91 S. E. 970), 107 S. C.
90; Case v. A. & C. A. L. Ry. (92
S. E. 472), 107 S. C. 216; Sexton
v. Rock Hill (93 S. E. 180), 107
S. C. 506.
6. As to relative value of evidence.
Case v. A. & C. A. L. Ry. (92 S.
E. 472), 107 S. C. 216.
7. As to intent of actor. China
v. S. A. L. Ry. (92 S. E. 335),
107 S. C. 179. Also, Fox v. Fox
(92 S. E. 477), 107 S. C. 250.
Also, Gobbel v. Columbia Ry.,
Gas & El. Co. (93 S. E. 137),
107 S. C. 367.
8. Directed in equity cases.
Erskine v. Erskine (92 S. E. 465),
107 S. C. 233.
9. As to location. Farmers &
Merchants Bank v. Rivers (92 S.
E. 753), 107 S. C. 204.
10. As to legal title. Farmers &
Merchants Bank v. Rivers (92
S. E. 753), 107 S. C. 204.
11. As to delivery of deed, etc.
Fox v. Fox (92 S. E. 477), 107
S. C. 250.
12. Disputed questions of fact.
Outlaw v. National Council (92
S. E. 469), 107 S. C. 225; Hub-
bard v. Hollis (92 S. E. 1040),
107 S. C. 325; James v. Victor
Mfg. Co. (92 S. E. 1045), 107 S.
C. 334.
13. None, as to admitted facts.
Connor v. Grand Lodge (92 S. E.
1032), 107 S. C. 308.
14. As to fraud. Gobbel v. Colum-
bia Ry., Gas & Electric Co. (93
S. E. 137), 107 S. C. 367.
15. As to waiver. Porter v. Dixie
Fire Ins. Co. (93 S. E. 141), 107
S. C. 393; Sternheimer v. Com.
Travelers, etc. (93 S. E. 8), 107
S. C. 291.
16. As to aiding and abetting.
State v. Gilbert (93 S. E. 125),
107 S. C. 443.
17. As to inferences from collateral
and extrinsic circumstances.
Zemurray v. Menos (92 S. E.
1039), 107 S. C. 361.
JOINDER OF ACTIONS.
See Actions. Owens v. A. C. Lum-
ber Co. (93 S. E. 7), 107 S. C. 425.
JOINT DEBATORS.
1. Release of one or more.
Meyer v. Bouchier (92 8. E. 471),
107 S. C. 254.
JOINT TORT FEASORS.
1. Effect of judgment on action
against. National Bank of Sa-
vannah v So. Ry. Ca. Div.
(91 S. E. 972), 107 S. C. 28.
JUDGES AT CHAMBERS.
1. Cannot make final order dis-
missing action. Dallas v. Inman
(93 S. E. 8), 107 S. C. 402;
Kinder v. A. C. Lumber Co. (93
S. E. 7), 107 S. C. 404.
1. Motion to set aside judgment
by default will not be granted,
unless there is substantial com-
pliance with rule requiring de-
fendant's counsel to certify that
he verily believes defendant has
defense on merits. Gales v. Poe
(93 S. E. 189), 107 S. C. 483.
2. On defendant's motion to open
up default judgment and to be
allowed to answer, etc., evidence
held to show inexcusable negli-
gence on defendant's part to ex-
tent warranting Court in deny-
ing motion. Gales v. Poe (93
S. E. 189), 107 S. C. 483.
3. Satisfaction of judgment in
claim and delivery by delivery
of property. Gibbes Machinery
Co. v. Moore (92 S. E. 1033),
4. Form in action for foreclosure.
Christensen v. Griffin (93 S. E.
143), 107 S. C. 456.
5. For deficiency after foreclosure.
Christensen v. Griffin (93 S. E.
143), 107 S. C. 456.
6. On appeal conclusive. Cuttino
v. Singleton (92 S. E. 1046), 107
S. C. 465.
1. Effect of demonstration by by-
standers on. State v. Gens (93
S. E. 139), 107 S. C. 448.
LANDLORD AND TENANT.
1. Under Civ. Code 1912, sec. 4162,
landlord's lien for rent covered
share of third person and crop
raised by him as share cropper
with tenant. Hamilton v. Blan-
ton (92 S. E. 275), 107 S. C. 142.
2. Under Civ. Code 1912, sec. 4163,
providing for laborer's lien on
crops, share cropper with tenant
had lien for share of crop next
in priority with landlord's lien
for rent. Hamilton v. Blanton
(92 S. E. 275), 107 S. C. 142.
8. Under Civ. Code 1912, sec. 3515,
where share cropper with tenant
executed mortgage on crops,
after contract of tenancy had
been made, landlord had right
to follow cotton which had been
set off to share cropper and de-
livered by him to mortgagee.
Hamilton v. Blanton (92 S. E.
275), 107 S. C. 142.
4. By signing mortgage of crops
with tenant, landlord waived
right to first lien for rent to ex-
tent of the amount necessary to
pay mortgage debt, and, if ten-
ant delivered to landlord and
mortgagee more than enough
cotton to pay rent, landlord had
no right to cotton set off to
tenant's share cropper as his
share of crop. Hamilton V.
Blanton (92 S. E. 275), 107 S. C.
142.
5. In addition to lien for rent giv-
en by statute and remedy therein
prescribed for enforcing it, land-
lord may collect his rent by dis-
tress. Hamilton v. Blanton (92
S. E. 275), 107 S. C. 142.
6. Under Civ. Code 1912, sec. 4169,
that landlord's rent was not due
until November 1st did not pre-
vent levy of distress warrant,
October 17th, on cotton within
10 days after it was removed
from premises. Hamilton v.
Blanton (92 S. E. 275), 107 S. C.
142.
7. In levying distress, landlord
may seize tenant's goods if he
can do so peaceably; but, if he
is resisted, he must stop short
of violating law or committing
breach of peace, and resort to
Courts to obtain possession of
tenant's goods. Hamilton v.
Blanton (92 S. E. 275), 107 S. C.
142.
8. Where plaintiff notified defend-
ant of his lien on cotton sold by
plaintiff's tenant prior to the
sale, such notice, being given be-
fore defendant's purchase, was
sufficient to preserve plaintiff's
right. Markert v. North Augus-
ta Warehouse etc. Co. (92 S. E.
201), 107 S. C. 135.
9. Where plaintiff's tenant sold to
defendant cotton on which plain-
tiff had a lien, the fact that de-
fendant refrained from criminal-
ly prosecuting the tenant because
plaintiff promised to attach the
cotton does not raise any estoppel
against plaintiff; it not being the
policy of the law to collect debts
by criminal prosecution. Ib.
10. See Liens. State v. Bannister
(92 S. E. 1047), 107 S. C. 357.
Chattel Mortgages. Cassidy v.
Hutto (93 S. E. 191), 107 S. C.
11. Tenancies which start as ten-
ancies at will may be changed by
the acts of the parties, express
or implied, into tenancies from
year to year, but tenancies at
will, resting in contract, may
nevertheless exist as lawful
estates; the statutes so referring
to them. Morgan Silver Plate Co.
v. Bobo Undertaking Co. (92 S.
E. 720), 107 S. C. 280.
12. A mortgage creditor of a ten-
ant, who became such creditor
before the tenant assumed the
actual relation of tenant to the
landlord, is an exception to the
general rule as to the landlord's
right of distress for rent, and
he must prove the exception, de-
clared by Civ. Code 1912, sec.
8516, excepting from distress
property subject to a mortgage
made before the rent contract
was entered upon. Ib.
13. Under Civ. Code 1912, sec. 3615,
providing that in cases where
property distrained for arrears in
rent is subject to the lien of a
mortgage placed on the property
before it was brought upon the
rented premises, the mortgage
debt shall have precedence of pay-
ment, and section 3515, extend-
ing the landlord's remedy of dis-
tress to mortgaged property of
the tenant, where a mortgagor
company was in possession of
premises as tenants of the land-
lord when it mortgaged property
on the premises, and so
tinued, so that the mortgage
creditors took for security a lien
on property at the time subject
to arrears of rent, and so con-
tinuing, which the mortgage
creditors knew, the mortgage
claim as to the property covered
by the mortgage had no prefer-
ence over the rent claim. Ib.
1. Mere use of trust funds for the
individual purposes of the trus-
tee does not become a crime
until the trustee forms and exe-
cutes the intent to steal the
funds. China v. Seaboard Air
Line Ry. (92 S. E. 335), 107
S. C. 179.
LAWS OF OTHER STATES.
1. To be declared by the trial Court.
Case v. A. & C. A. L. Ry. (92
S. E. 472), 107 S. C. 216.
See Marshaling Assets. Markert
v. North Augusta etc. Co. (92 S.
E. 201), 107 S. C. 135.
See Disposing of Property Under.
State v. Bannister (92 S. E.
1047), 107 S. C. 357.
See Chattel Mortgages. Cassidy v.
Hutto (93 S. E. 191), 107 S. C.
490; Morgan Silver Plate Co. v.
Bobo Undertaking Co. (92 S. E.
720), 107 S. C. 280.
LIMITATIONS OF ACTIONS.
1. On insurance policies. Stern-
heimer v. O. U. C. T. A. (93 8. E.
8), 107 S. C. 291.
LIMITATION OF ESTATES.
See Wills. McFadden v. McFad-
den (91 S. E. 986), 107 S. C. 101;
Pearson v. Easterling (92 S. E.
619), 107 S. C. 265.
1. Order for survey within dis-
cretion of Court. Welsh v. A. C.
L. R. R. Co. (93 S. E. 196), 107
S. C. 535.
2. Held a question for jury.
Farmers & Merchants Bank v.
Rivers (92 S. E. 753), 107 S. C.
204.
LOGS AND LOGGING.
1. In action to enjoin defendants
from interfering with plaintiff
in cutting and removing timber
under contract of sale providing
for extension of time on payment
of interest on price, decree for
plaintiff affirmed. Beaufort
County Lumber Co. v. Johnson
(92 S. E. 271), 107 S. C. 147.
See Gaming. State v. Harley (92
S. E. 1034), 107 S. C. 304.
MAGISTRATES.
1. Where findings of fact in mag-
istrate's Court were affirmed by
Circuit Court on appeal, Circuit
Judge was not required "to state
his conclusions of law, together
with concise statement of facts,
separately." Powell v. Cobb (93
S. E. 191), 107 S. C. 504.
2. Where proof showed that plain-
tiff and defendant in an action
of claim and delivery were joint
owners, their rights, equitable
in nature, could not be adminis-
tered in a magistrate's Court in
view of Const., art. V, sec. 21,
providing that a magistrate's
jurisdiction shall not extend to
cases of chancery. Driggers v.
Cannon (92 S. E. 1049), 107 S. C.
322.
3. Although Const., art. V, sec.
21, provides that the jurisdiction
of magistrates shall not extend
to cases in chancery, in an action
in claim and delivery, to recover
possession of a horse tried be-
fore a magistrate, defense of
estoppel was in pais, and not
equitable in its nature, and hence
the magistrate had jurisdiction
thereof. Aiken v. Seabury (92
S. E. 1048), 107 S. E. 376.
MALICIOUS PROSECUTION.
1. Paintiff in malicious prosecu-
tion to recover, must show lack
of probable ground for the prose-
cution, that defendant acted with
express malice, and that such
prosecution ended before begin-
ning of the civil action. China v.
Seaboard Air Line Ry. (92 S. E.
335), 107 S. C. 179.
2. Probable cause means the ex-
istence of such facts and circum-
stances as would excite the belief
in a reasonable mind that the
person charged was guilty of
crime for which he was prose-
cuted. China v. Seaboard Air
Line Ry. (92 S. E. 335), 107 S. C.
179.
3. Consultation of counsel before
instituting a prosecution is not
conclusive of his good faith in be-
ginning the prosecution. China v.
Seaboard Air Line Ry. (92 S. E.
335), 107 S. C. 179.
4. Malice in a prosecution may be
inferred from want of probable
cause; the inference being rebut-
table. China v. Seaboard .Air
Line Ry. (92 S. E. 335), 107 S. C.
179.
5. Circumstances tending to show
probable guilt need not measure
up to those which prove guilt;
the difference being not in the
character of the circumstances,
but in their weight. China v.
Seaboard Air Line Ry. (92 S. E.
335), 107 S. C. 179.
6. Since larceny involves general-
ly a secret intent of the defend-
ant, and generally rests in cir-
cumstances, the inference of in-
tent to be drawn therefrom is
generally a question of fact for
the jury. China v. Seaboard Air
Line Ry. (92 S. E. 335), 107 S. C.
179.
7. The mere fact that a railroad
ticket agent used railroad funds
for his own purposes held not to
warrant the Judge upon that
showing alone to infer as a mat-
ter of law that he had the secret
intent to steal. Ib.
8. Where a railroad auditor had
found shortages in a ticket
agent's account, but had passed
them for two months, and they
had been made up, and he there-
after found a shortage in an-
other month, it was a jury ques-
tion whether the circumstance
of such shortage warranted him
in assuming a criminal intent.
Ib.
9. That a railway auditor passed
over certain shortages for pre-
vious months before resorting to
criminal prosecution for a short-
age for the current month held
not conclusive of his good faith;
but merely presented the ques-
tion for the jury whether he
acted in good faith. Ib.
MANSLAUGHTER.
1. Charge should have been given
on. State v. Hughes (93 S. E.
5), 107 S. C. 429.
2. Conviction for aiding and
abetting in. State v. Graham
(92 S. E. 188), 107 S. C. 139.
MARRIAGE OF SLAVES.
1. Under the Enabling Act of De-
cember 21, 1865 (13 Št. at Large,
p. 291), as to legitimacy of chil-
dren born to slave parents who
sustained marriage relations,
where the evidence showed that
the deceased ex-slave at the time
of the passing of such act lived
in the marriage relation with
plaintiff, and that three children
were born to them, the wife and
children took an interest in the
estate of such ex-slave, and were
entitled to partition. Mims v.
Jones (91 S. E. 987), 107 S. C. 81.
2. Such interest vested on the pas-
sage of the act. Ib.
3. Where, on passage of Enabling
Act (13 St. at Large, p. 291), a
slave was living in the marriage
relation with a slave woman, he
could not thereafter contract a
valid marriage with another
woman while the first wife lived.
Mims v. Jones (91 S. E. 987),
107 S. C. 81.
MARSHALING ASSETS.
1. Where a tenant, who was re-
quired to deliver cotton, raised
at a warehouse sold to defendant
cotton on which the landlord
had a lien, the landlord's claim
could not be defeated on the
ground that he should first seek
satisfaction in any other possible
way before attempting to reach
the cotton sold to defendant;
there being no place in such case
for the doctrine of marshaling
of assets. Markert v. North Au-
gusta Warehouse etc. Co. (92 8.
E. 201), 107 S. C. 135.
MASTER AND SERVANT.
1. Under Civ. Code 1912, sec.
2808, with reference to relief de-
partment contracts, held, where
plaintiff accepted agreed sum
and signed release in full to em-
ployer for all claims and de-
mands growing out of or inci-
dent to injury, he could not re-
Starr
cover on relief contract.
v. Atlantic Coast Line R. Co.
(93 S. E. 176), 107 S. C. 529.
2. In action against railway for
death of locomotive engineer,
question of defendant's negli-
gence held for jury. Strickland
v. Southern Ry. Co. (93 S. E.
187), 107 S. C. 522.
3. Employer held bound to pro-
vide reasonably safe place for
employee to work in. Prince v.
Massasoit Mfg. Co. (93 S. E. 2),
107 S. C. 387.
4. Under Code Civ. Proc. 1912,
sec. 224, allowing amendments by
conforming pleading or proceed-
ing to facts proved, in action for
injuries, held, that Court prop-
erly admitted evidence that
plaintiff contracted pleurisy from
injury complained of in com-
plaint.. Prince v. Massasoit Mfg.
Co. (93 S. E. 2), 107 S. C. 387.
5. In an action for death of a serv-
ant, whether the servant as-
sumed the risks ordinarily inci-
dent to the employment was not
a question of fact for the jury,
but it was a question of fact
for the jury whether the serv-
ant was killed by one of the
ordinary risks incident to the
employment in which he was en-
gaged. Nelson v. A. G. & P. Co.
(92 S. E. 194), 107 S. C. 1.
6. In an action for death of a
servant, the Court charged that,
if the jury found that the serv-
ant assumed the risk ordinarily
incident to the employment,
then, it being an assumption of
risk, he cannot recover if he was
injured by one of the ordinary
risks incident to the employment
in which he was engaged. Held
that, though a refined reading of
the charge would sustain de-
fendant's construction of it that
it left to the jury to find whether
or not the servant assumed the
ordinary risks incident to his
work, nevertheless a jury would
hardly be misled. Nelson v. A.
G. & P. Co. (92 S. E. 194), 107
S. C. 1.
7. In an action for the death of
a servant, where the answer al-
leged, to defeat the action, not
plaintiff's sole negligence, but
his contributory negligence, the
charge that, if the servant was
injured by the negligence of a
fellow servant as the sole proxi-
mate cause, the negligence of the
fellow servant being another
sole proximate cause, plaintiff
could not recover, and defend-
ant's request to charge that, if
the proximate cause of the in-
jury to the servant was the
servant's own negligence, concur-
ring and combining with that of
the employer, he could not hold
the employer responsible, were
responsive to the issue made by
the pleadings. Ib.
8. In an action for death of a
servant, where the Court in-
structed that defendant corpora-
tion was bound to guard its em-
ployees against negligence of co-
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