an

heard, under Code Civil Proc.,
section 397, upon all the papers
in the case, including the testi-
mony upon the trial taken down
in writing and signed by the
witnesses and certified to the ap-
pellate Court, under Code Civil
Proc., section 401, and where the
testimony has not been so taken
down by the magistrate,
amended or further return, un-
der Code Civil Proc., section
403, would not be effective to
bring the missing testimony be-
fore the appellate Court, and a
new trial de novo is necessary.
McKinley Music Co. v. Glymph,
84 S. E. 715, 100 S. C. 200.
3. The Supreme Court may, on
its own motion pending appeal
from a decree dismissing a suit
to declare the rights of defend-
ant under a timber deed termi-
nated 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.
Lumber Co., 84 S. E. 410, 100
S. C. 87.

4. 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. State v. Hondros, 84 S.
E. 781, 100 S. C. 242.

5. 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 penal-
ties of fine or forfeiture not ex-
ceeding $100; and sec. 699, et
seq., provided for the forfeiture
of goods exposed for sale on
Sunday and gives to magistrates
authority to summon any offend-
er, and, upon proof, to issue war-
rant to seize and sell such goods.
Held, that the magistrate had
jurisdiction to forfeit goods ex-

posed for sale on Sunday; the
term "punishment" not includ-
ing a forfeiture. State v. Hon-
dros, 84 S. E. 781, 100 S. C. 242.
6. 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.

CREDITORS.

1. Where the authority of the offi-
cer of a corporation to borrow
money and bind the corporation
for its payment is unquestioned,
the authority of such officer to
pledge the stock of the corpora-
tion or make a contract for its
redemption need not be consid-
ered in determining whether or
not one to whom certificates of
stock were issued, on which
money was obtained from him
for the use of the corporation
was a creditor thereof. Hern-
don v. Wardlaw, 84 S. E. 112,
100 S. C. 1.

CRIMINAL LAW.

1. Conviction for murder of per-
son in his dwelling house with a
pistol and an axe held not to bar
a prosecution for arson of the
dwelling house under Const., art.
I, sec. 17. State v. Rogers, 84
S. E. 304, 100 S. C. 77.

2. That person sentenced to death
for arson
was undergoing life
imprisonment for murder under
prior conviction did not prevent
execution of death
State v. Rogers, 84 S. E. 304,
100 S. C. 77.

sentence.

3. Under Const., art. V, sec. 1,
Cr. Code 1912, sec. 20, relating
to magistrate's jurisdiction, sec-
tion 699, et seq., providing pen-
alty for sale of goods on Sun-
day, held that magistrate had
jurisdiction to forfeit goods ex-
posed for sale on Sunday. State
v. Hondros, 84 S. E. 781, 100
S. C. 242.

4. The existence of a copartnership
held to depend on the agreement
between the parties, which agree-

6. The "abuse of discretion" that
authorizes an appellate Court to
reverse a denial of a new trial,
implies error of judgment that
is plain. Id.

7. Facts being involved in the order
of the Circuit Court granting
defendant a new trial, on the
ground that he did not have a
fair trial, it cannot be reviewed.
Town of Denmark v. Corley, 84
S. E. 884, 100 S. C. 433.
8. Affidavits of negro women con-
fined in a city guardhouse as to
declarations of State's chief wit-
ness in a prosecution for mur-
der held of a character too un-
reliable to call for disturbance
of the verdict. State v. Griffin,
84 S. E. 876, 100 S. C. 331.
9. The mere fact that the State's
solicitor knew that a certain dis-
tance was much greater than had
been testified to held not to jus-
tify a reversal on the ground
of suppression of evidence. State
v. Griffin, 84 S. E. 876, 100 S.
C. 331.

10. The exclusion from the court-
house, during the trial of a bas-
tardy case, of negroes and boys
drawn thither by only prurient
curiosity, is in the discretion of
the trial Judge. State v. Adams,
84 S. E. 368, 100 S. C. 43.
11. 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.

12. A charge of bad faith on the
part of the prosecuting attor-
ney in withholding testimony
from the jury, involves construc-
tive or actual fraud, design to
deceive or neglect or refusal to
fulfill some duty, due to an in-
terested or sinister motive, and

not honest mistake, and is not
to be lightly made, and when
made, should be clearly proven.
Id.
13. Where a defendant charged
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 sell-
ing 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 con-
sidered, as the errors assigned
could not have affected the re-
sult. State v. Schiadaressi, 84
S. E. 536, 100 S. C. 91.
14. A town's chief of police is not
to be held to have such bias
against defendant, charged with
disorderly conduct, as to dis-
qualify him from making up the
jury list; he not having wit-
nessed his disorderly conduct,
but merely started him to the
guardhouse for refusal to give
bond. State v. Byrnes, 84 S. E.
822, 100 S. C. 230.

15. One is guilty of disorderly con-
duct if his language, consider-
ing the time and place, was cal-
culated to produce disorder and
to disturb the public peace and
quiet. State v. Byrnes, 84 S. E.
822, 100 S. C. 230.

16. Evidence that it was near mid-
night in the heart of a town,
that several persons were near,
and that an officer a block away
heard defendant's profane lan-
guage, warrants the jury in
concluding it was calculated to
produce disorder and disturb the
public peace and quiet. Id.
17. That one's profanity of a loud

and boisterous nature was ut-
tered in his own house does not
prevent his being guilty of dis-
orderly conduct; the "castle"
being given for defense, and not
for offense. Id.

18. That disorderly and profane
language is uttered on one's
own premises does not relieve

the user from amenability to the
public, where the utterance ex-
tends beyond such premises and
of the public to the disturbance.
Id.

19. If a special verdict in a crimi-

nal case is defective or insuffi-
cient to sustain a judgment of
conviction, a motion should be
made before judgment to set
such verdict aside and for a new
trial. Id.

CROSSING SIGNALS.

1. Civ. Code 1912, sec. 3222, re-
quiring railroad signals at cross-
ings, did not give right of action
to a farmer working in a near-by
field injured by fright of his
horse by a train not giving the
signal. Hutto v. Southern Ry.
Co., 84 S. E. 719, 100 S. C. 181.

DAMAGES.

1. The question of mere excess of
damages for personal injury is
one for the trial Court, and not
for re-examination on appeal; it
being one on the evidence, and
the excess not appearing as a
matter of law. Yarborough v.
C., N. & L. R. R. Co., 84 S. E.
308, 100 S. C. 32.

2. The provision in Code Civil
Proc., sec. 338, that where either
party to an action for recovery
of personal property gives bond
for the property in question, as
provided by law, no punitive
damages shall be allowed for
anything occurring in the pend-
ing action in which the bond is
given, after giving such bond;
does not shield against future
actions for punitive damages for
wilful acts committed after the
termination of such pending
action. Williams v. Weekley, 84
S. E. 299; 100 S. C. 28.

3. 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.

4. For breach of a contract to sell
and deliver goods, the measure

of damages is the difference be
tween the contract price and the
market price at the time of the
breach of contract. Medlin v.
Adams Grain & Provision Co.,
84 S. E. 867, 100 S. C. 359.
5. Under Civ. Code 1912, sec. 3509,
giving a tenant wrongfully dis-
charged an action for damages
against a landlord, punitive dam-
ages may be allowed. Williams
v. Columbia Mills Co., 85 S. E.
160, 100 S. C. 363.

6. The point that there was no evi-
dence to support a verdict for
punitive damages is not avail-
able on appeal, where there was
no motion for a nonsuit or direc-
tion of a verdict on that issue.
Holden v. Cantrell, 84 S. E. 826,
100 S. C. 265.

DEEDS.

1. Conveyance by person who had
recovered possession of land by
decree authorizing defendant to
remove buildings held not to
convey articles in the buildings
or in or on the land that were
not fixtures. Saye v. Hill, 84 S.
E. 307, 100 S. C. 21.

2. A deed held one to G. for life
for his own uses and in trust for
the maintenance of his children,
with remainder in fee to his
children. Falk v. Hughes, 84 S.
E. 713, 100 S. C. 220.

3. A conveyance intended as a se-
curity for a debt is a "mort-
gage, whatever may be its
form. Bryan v. Boyd, 84 S. E.
992, 100 S. C. 397.

4. A conveyance absolute in form
is presumed to be an absolute
conveyance, and, to establish its
character as a mortgage, the
evidence must be clear, unequiv-
ocal, and convincing. Bryan v.
Boyd, 84 S. E. 992, 100 S. C.
397.

5. Evidence, in a mortgagor's ac-
tion to redeem land purchased
by a mortgagee on foreclosure,
held not sufficient to show that
the sheriff's deed was a mort-
gage, so that plaintiff might re-
deem. Bryan v. Boyd, 84 S. E.
992, 100 S. C. 397.

DEFAULT JUDGMENT.

1. Judgment should not be ren-
dered by default upon a coun-
terclaim in the absence of proof
to sustain it. Gibbes Machinery
Co. v. Hamilton, 84 S. E. 296,
100 S. C. 59.

2. Where an answer has been
stricken out as sham, and the
cause in Court, it may render
judgment thereon, as in case of
defauit, or for want of a plea.
Interstate Chem. Co. v. Farm-
ington Corporation, 84 S. E.
710, 99 S. C. 196.

3. The refusal of the Circuit
Court to set aside a judgment
by default and permit an an-
swer filed, will not be reviewed,
unless the appellant satisfies the
Court that the presiding Judge
erroneously exercised his discre-
tion. Brown v. Caldwell, 84 S.
E. 996, 100 S. C. 421.

DISORDERLY CONDUCT.

1. One is guilty of disorderly con-
duct, if his language, consider-
ing the time and place, was cal-
culated to produce disorder and
to disturb the public peace and
quiet. State v. Byrnes, 84 S. E.
822, 100 S. C. 230.

2. That profane and disorderly
conduct was in defendant's
house was not a defense. State
v. Byrnes, 84 S. E. 822, 100 S.
C. 230.

to

3. Evidence of time and place and
nearness of persons held
warrant the jury concluding de-
fendant's language was calcu-
lated to produce disorder and
disturb the public peace and
quiet. State v. Byrnes, 84 S. E.
822, 100 S. C. 230.

4. If the verdict finding defendant
used loud, boisterous and pro-
fane language was defective, in
not expressly finding it dis-
turbed the peace, the remedy
was by motion before judgment
to set it aside and for a new
trial. State v. Byrnes, 84 S. E.
822, 100 S. C. 230.

DISPENSARY.

1. An incorporated town is a com-
plete entity, and the legislature

1. Where an action by a landlord
to recover possession of goods
taken by the tenant out of
the landlord's possession, who
claimed same under a distress
for rent due, the testimony
tended to show the relationship
of landlord and tenant, and rent
past due, and a levy of a dis-
tress warrant on goods in an
outhouse or shop, by the land-
lord's agent, in the absence of
the tenant, making an inventory
of the goods in the house as de-
scribed by a subtenant or third
person left in possession by the
tenant, by such agents, and
placing another lock upon the
door, which was subsequently
broken by the tenant, who thus
repossessed himself of the
goods, a nonsuit was erroneous,
as the question whether posses-
sion of the goods had been
peaceably obtained by the plain-
tiff should have been submitted
to the jury, together with the
questions as to tenancy and ar-
rearage of rent. McCraw V.
Killian, 84 S. E. 868, 100 S. C.
320.

DUE PROCESS OF LAW.

1. Const. U. S., amend. 5, and
Const., art. I, sec. 5, declaring
that no one shall be deprived of
life, liberty, or property with-
out "due process of law" only
saved to a person the right to
be brought into Court and to
have a chance there to establish
any fact which by the law of
the land will protect him and
his property, and are not vio-
lated by Cr. Code 1912, sec. 699,
et seq., providing for a for-
feiture of goods exposed for sale

1. Where freeholders petitioned a
town council for an election on
the issuance of bonds for the
"construction" of waterworks
and sewerage systems, the order
for an election on the issuance
of bonds for the "construction
and maintenance" of such sys-
tems was not such a variance
between the petition and the
submission as affected the valid-
ity of the bonds, but went only
to the application of the pro-
ceeds of the bonds, and the free-
holders could not complain, un-
less the council should apply the
proceeds to a different purpose,
and the voters could not com-
plain, since they authorized the
application of the proceeds to
both purposes, and necessarily
vested in the council discretion
to use the whole for the purpose
of construction, if it saw fit to

do so. Connolley v. Beason, St

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

EMBEZZLEMENT.

1. Evidence held sufficient to take
to the jury the question whether
a partnership existed between
defendant and prosecutor which
would be a defense to the prose-
cution. State v. Grumbles, 84
S. E. 783, 100 S. C. 238.

EQUITIES.

1. The burden is on appellant in
chancery cases to show that the
preponderance of the evidence is
against the concurrent findings
of the referee and trial Judge.
Gibbes Machinery Co. v. Hamil-
ton, 84 S. E. 296, 100 S. C. 59.
2. Where a purchaser knowing of
defects in goods, accepts them,
trusting to the verbal promise
of the seller to correct the de-
fects, and gives such seller a
note and mortgage for the pur-
chase money to be used as a
means of obtaining money or
credit from third parties, such
purchaser is estopped as against
an innocent holder without no-
tice of the defects, extending
credit or advancing money on
an assignment of such note and
mortgage, to show such defects
or to claim a deduction there-
for from the amount due on the
note and mortgage. Id.

ESTOPPEL.

1. In action against county upon
county warrants, pledged with
plaintiff by one whom the
county had authorized to ac-
quire such warrants under an
arrangement unknown to plain-
tiff, held that as the county
made it possible for the third
person to do the injurious act,
it should bear the loss. Pal-
metto Nat. Bank v. Lexington
County, 84 S. E. 1006, 100 S. C.

452.

2. A judgment dispossessing a
tenant in proceedings under Civ.
Code 1912, sec. 3509, estops the
tenant from claiming that he
was wrongfully dispossessed.