ABATEMENT AND SURVIVAL.

1. Effect of conviction and imprisonment of defendant during pendency of action. Cobb v. Garlington, 84 S. E. 302, 100 S. C. 51.

ACCOUNT STATED.

1. Under Civil Code 1912, section 2516, allowing interest in cases of account stated, and in cases wherein any sum shall be ascertained to be due, a seller suing for the price of goods cannot recover interest, where the goods were sold at different times, and payments made on separate days, and the buyer never acknowledged any statement of account to be true or due; the essence of an "account stated" being that an account is actually stated, and that the parties thereto agree expressly or impliedly that it is a true statement, and is due or will be due at some future time. Wakefield v. Spoon, 84 S. E. 418, 100 S. C. 100.

AGENCY.

1. Where a written contract showed on its face that it was made for a corporation, and that W., its president, had authority to act for the corporation, the fact that he signed the contract "W., President," or "Pt." did not indicate that the abbreviation was mere descriptio personae and that the contract was his own and not that of the corporation. Herndon v. Wardlaw, 84 S. E. 112, 100 S. C. 1.

2. Where a written contract shows upon its face that it was made on behalf of a corporation, and it appears from evidence, aliunde, that the officer making it had authority to act for the corporation, 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 name of such officer. Id.

3. Parol testimony is admissible to show agency of person receiving money for mortgagee, and payment through such agent. Williams v. Weekley, 82 S. E. 299, 100 S. C. 28.

4. A note given by a third person to the company for fertilizers sold the third person by defendant, and the payment thereof by the third person's check to defendant, could be considered in determining the issue of agency set up as a defense to the action for the price. Wakefield v. Spoon, 84 S. E. 418, 100

S. C. 100.

5. Where by the rules of a railroad company, its station agent was under no duty to report encroachments by abutting owners upon its right of way in a suit by the road to recover possession of part of its right of way

encroached upon by defendant,
evidence was inadmissible con-
tradicting the agent's denial that
he had requested defendant to
move her fence off the right of
way, and that defendant denied
it was misplaced. A. C. L. R.
R. Co. v. Dawes, 84 S. E. 830,
100 S. C. 258.

AGRICULTURE.

1. Under Code, secs. 3062-3064,
officers in foreclosure of agricul-
tural liens should be paid from
proceeds of sale and balance
applied to debt due. Baird v.
Weatherford, 85 S. E. 59, 100
S. C. 490.

ALIMONY.

1. Where, in a wife's action for
alimony, it appears that she
voluntarily left her husband's
home, the burden is on her to
show that her husband inflicted
on her such physical violence or
personal indignity as rendered
it intolerable to live with him as
wife. Dagnall v. Dagnall, 84 S.
E. 870, 100 S. C. 298.
2. Evidence, in a wife's action for
alimony, held insufficient to sus-
tain her contention that defend-
ant either drove her away from
home or prevented her from re-
turning to him after she had
gone to visit her sick grandchild,
and was thereby guilty of de-
sertion, though it showed that
he had objected to her going to
see the child. Id.

3. Evidence, in a wife's action for
alimony, held insufficient to sus-
tain plaintiff's contention that
defendant required of her such
servitude as tended to destroy
her life or health. Id.

4. Evidence that defendant came
home under the influence of
whiskey and broke up some fur-
niture and cursed did not au-
thorize a judgment for his wife
for alimony, where it failed to
show that he offered her any
personal violence or abused or
cursed her. Id.

AMENDMENTS.

1. Leave to amend is within the
discretion of the trial Court,

and an appeal from its order
refusing such leave will be dis-
missed where the original plead-
ings are not incorporated in the
case, and the issues raised there-
by are not made known to the
appellate Court. Marion Co.
Lumber Co. v. Hodges, 85 S. E.
49, 100 S. C. 477.

2. A variance between the allega-
tions of complaint and proof
may be cured by amendment
under Code Civil Proc., sec 220,
and is not ground for nonsuit,
unless the defendant has been
misled thereby. Moore v. Mar-
ion Cotton Oil Co., 85 S. E.
52, 100 S. C. 499.

ANSWER.

1. An answer admitting the con-
tract alleged in the complaint, and
alleging a subsequent agreement
to extend time for payment, up-
on the defendant making a par-
tial payment in cash and giving
notes secured by a mortgage of
real estate for the balance, and
that the performance of the lat-
ter agreement was delayed on
account of the illness of defend-
ant's officer, and that defendant
intended to carry out the agree-
ment in good faith; held, prop-
erly stricken out as sham, where
the Court found that defendant
never intended to perform the
agreement upon which the prom-
ised extension was based, and
such defense was untrue. Inter-
state Chem. Co. v. Farmington
Corporation, 84 S. E. 710, 100 S.
C. 196.

2. In an action for damages al-

leged to have arisen from the
wilful tort of another, the latter
may plead in defense any facts
rebutting the allegations or in-
ference of wilfulness or which
would, if established, mitigate
the damages claimed in the com-
plaint. Ashe v. So. Ry. Co., 84
S. E. 716, 100 S. C. 187.

APPEAL AND ERROR.

1. The burden is on appellant in
chancery cases to show that the
preponderance of the evidence
is against the concurrent find-

ings of the referee and trial Judge. Gibbes v. Hamilton, 84 S. E. 296, 100 S. C. 59. 2. Grounds of objection to a referee cannot be considered on appeal unless they appear on the record. Id.

3. The judgment of the Supreme Court, rendered on appeal, granting a new trial, operates as res adjudicata, and cannot be changed by the Court, after the remittitur has been sent down, and the Court has lost jurisdiction in the pending cause. Halsall v. A. C. L. R. R. Co., 85 S. E. 433, 100 S. C. 483.

4. The remittitur is stayed for ten days after filing judgment on appeal, during which time it is the duty of counsel engaged in the cause, to call the attention of the Court to any supposed error in the judgment. Id. 5. The Supreme Court may, on its own motion pending appeal from a decree dismissing a suit to declare the rights of defendant under a timber deed terminated and to remove the cloud thereof from plaintiff's land, maintain by injunction the status quo on plaintiff giving to defendant a bond conditioned to save defendant harmless in the event he establishes his rights on appeal. Gray v. Marion Co. L. Co., 84 S. E. 410, 100 S. C. 87. 6. Where a defendant charged with selling intoxicating liquors on October 28th, when brought to trial in a municipal Court on October 31st, denied selling on the 28th, but admitted such selling on the morning of the 29th, the day the warrant was sworn out against him, a judgment of conviction will be affirmed; his exceptions to the sufficiency of the affidavit and warrant, and charge of the recorder to the jury in the municipal Court, being frivolous, need not be considered, as the errors assigned could not have affected the result. State v. Schiadaressi, 84 S. E. 536, 100 S. C. 91.

7. The practice of making in opening argument, a direct and suc

11. It being made to appear on appeal in an action for specific performance of a contract to make mutual wills that the decree is against the clear preponderance of the evidence, it will be reversed. Dicks v. Cassels, 84 S. E. 878, 100 S. C. 341. 12. Where a natural motive for making a will appears from the evidence and the finding on Circuit that a testator was incapacitated and unduly influenced to make the will, is unsupported by the evidence, such finding will be reversed on appeal. Id. 13. Fndings of fact by the Circuit Court in a law case on appeal from a magistrate are not reviewable in the Supreme Court on appeal. Kimbrell v. Mills & Young Co., 84 S. E. 996, 100 S. C. 443.

14. Under Circuit Court rule 77 (73 S. E. 7), the point that there was no evidence to support a verdict for punitive damages is not reviewable, where the record does not show that a motion for nonsuit or direction of the verdict on that issue

was made. Holden v. Cantrell, 84 S. E. 826, 100 S. C. 265. 15. The Court will not consider statements of facts appearing only in the exceptions. Holden v. Cantrell, 84 S. E. 826, 100 S. C. 265.

16. An assignment of error to the argument of counsel in commenting on absence of pencil sketch held not to be considered in view of the record. Holden v. Cantrell, 84 S. E. 826, 100 S. C. 265.

17. In absence of exception by defendant, held that, on plaintiff's appeal, question whether Circuit Court, on appeal from magistrate's Court, should have rendered judgment absolutely for defendant, could not be considered. McKinley Music Co. v. Glymph, 84 S. E. 715, 100 S. C.

200.

18. In absence of an exception, and in view of an admission and finding as to defendant's execution of contract, held, that it would be assumed that the execution of the contract was not in issue. Id.

19. An exception which states a proposition of law, but which does not show that the Court disputed it or was requested to charge it, presents no question for review. Bridgman v. Southern Bell Telephone & Telegraph Co., 84 S. E. 711, 100 S. C. 204.

20. Failure to charge on a subject

is not ground for complaint, unless there was a request to charge thereon. Bridgman v. Southern Bell Telephone & Telegraph Co., 84 S. E. 711, 100 S. C. 204.

21. The failure to give instructions as to rules for the guidance of the jury in determining the boundaries held reversible error. Holden v. Cantrell, 84 S. E. 826, 100 S. C. 265. 22. Failure to charge the principles of law applicable to an issue cannot be assigned as error, un'ess the party complaining requested instructions thereon. Fitzgerald v. J. 1. Case Thresh

ing Mach. Co., 84 S. E. 991, 100 S. C. 435.

23. To disturb a refusal to open a default judgment and allow an answer, a satisfactory showing of erroneous exercise of discretion must be made. Brown v. Caldwell, 84 S. E. 996, 100 S. C. 421.

24. It is not reversible error for a referee to state too strict a rule, if the true rule shows that the appellant is not entitled to the relief for which he asks. Bryan v. Boyd, 84 S. E. 992, 100 S. C. 397.

25. Striking of portion of answer I will not be disturbed, when the same facts could be shown under the general issue pleaded. Mutual Lumber Co. v. Southern Ry Co., 84 S. E. 994, 100 S. C. 415.

26. Where defendant only argued the denial of leave to amend his answer, his appeal must be dismissed where the incompleteness of the record rendered it impossible to determine whether the trial Judge abused his discretion. Marion County Lumber Co. v. Hodges, 85 S. E. 49, 100 S. C. 477.

27. An order denying leave to amend an answer will not be reviewed in the absence of manifest error. Marion County Lumber Co. v. Hodges, 85 S. E. 49, 100 S. C. 477.

28. In an action for services under contract to buy cotton seed oil at instructed prices, error, if any in admitting testimony as to market price, was immaterial. where there was no contention that price offered was up to market price. Moore v. Marion Cotton Oil Co., 85 S. E. 52, 100 S. C. 499.

29. In action for services under contract to buy cotton seed oil at instructed prices, instruction as to plaintiff's readiness to perform held harmless, where there was no showing that conditions for services had arisen. Moore v. Marion Cotton Oil Co., 85 S. E. 52, 100 S. C. 499.

30. Where a new trial is granted on the ground that the verdict is against the weight of the evidence, susceptible of more than one inference, the Supreme Court cannot interfere. Watson v. Paschall, 84 S. E. 531, 100 S. C. 281.

31. A party appealing from an adverse judgment on findings of a special master approved by trial Court must satisfy the Supreme Court by the preponderance of the evidence that the findings are erroneous. Forrester v. Moon, 84 S. E. 532, 100 S. C. 157. 32. Where a new trial is granted

in the exercise of discretion conferred on Circuit Judges to grant new trial, the Supreme Court will not interfere unless there was manifest error.

Wat

son v. Paschall, 84 S. E. 531, 100 S. C. 281.

33. Where the Court promised to charge as to the effect of certain evidence, but through oversight did not charge thereon, it was appellant's duty to have called the Court's attention to it. Wil liams v. Weekley, 84 S. E. 299, 100 S. C. 27.

34. The refusal of the Court to permit defendant to file his answer cannot be held error; the record showing no motion for leave. Southern Cotton Oil Co. v. Lightsey, 84 S. E. 301, 100 S. C. 40.

35. The question of mere excess of damages for personal injury is one for the trial Court, and not for re-examination on appeal; the excess not appearing, as a matter of law. Yarborough v. Columbia Ry., Gas & Electric Co.. 84 S. E. 308, 100 S. C. 32. 36. The question of preponderance

of evidence is for the trial Court on motion for new trial, and not for the Court on appeal after denial of the motion. Yarborough v. Columbia Ry., Gas & Electric Co., 84 S. E. 308, 100 S. C. 32.

37. Exceptions not argued are deemed abandoned. Williams v. Weekley, 84 S. E. 299, 100 S. C. 27.

38. A contention not made below will not be considered on appeal. Wichman V. Atlantic Coast Line R. Co., 84 S. E. 420, 100 S. C. 138.

39. Rulings on evidence held not reviewable where no specific ground of objection appears, or where the specific ground on which the Court relied is not shown. Smith v. Union-Buffalo Mills Co., 84 S. E. 422, 100 S. C. 115.

40. A party cannot complain of the admission of evidence to prove facts shown by his subsequent cross-examination of witnesses. Smith V. Union-Buffalo Mills Co., 84 S. E. 422, 100 S. C. 115.

41. Admission of testimony in reply will not be interfered with unless there has been an erroneous exercise of discretion. Smith V. Union-Buffalo Mills Co., 84 S. E. 422, 100 S. C. 115. 42. Allowance of leading questions will not be disturbed unless the discretion of the Court has been

prejudicially abused. Smith v. Union-Buffalo Mills Co., 84 S. E. 422, 100 S. C. 115.

43. If there is any testimony to sustain the finding of a referee concurred in by the Court, the finding cannot be reviewed. Campbell v. Stewart, 84 S. E. 415, 100 S. C. 144.

44. Error in allowing an incompetent question not answered is not prejudicial. Wakefield v. Spoon, 84 S. E. 418, 100 S. C. 100.

45. In an action for the price of

goods, error in admitting a contract between plaintiff and a third person, to prove a fact negatived by its terms, held not prejudicial to defendant. Wakefield v. Spoon, 84 S. E. 418, 100 S. C. 100.

46. Findings of fact in law cases are not reviewable by the Supreme Court on appeal. Palmetto Nat. Bank v. Lexington Co., 84 S. E. 1006, 100 S. C. 452. 47. Where an appeal in a criminal case involves only questions of law, the Court may render judgment absolute on appeal, but