11. Act Congress, March 1, 1913, known as the Webb-Kenyon act, divesting intoxicating liquors of their interstate character when such liquor is intended to be re- ceived, possessed, sold, or in any manner used in violation of State laws, is not unconstitutional as attempting to confer upon the State power to regulate inter- state commerce, the regulation being made by Congress itself in excluding from interstate com- merce liquor that is intended to be received, etc., in violation of State law. Brennan v. So. Ex- press Co. (90 S. E. 402), 106 S. C. 103.
12. Act 1915 (27 St. at Large, p. 737), sec. 1, providing that when a motor vehicle is operated in violation of the law or negligent- ly or carelessly, and when any- one receives personal injuries thereby, or when any property is damaged thereby, such dam- ages shall be a lien on such motor vehicle, next in priority to the lien for State and county taxes, recoverable in any Court of com- petent jurisdiction, with the right to attach such vehicle as pro- vided by law for attachment, does not violate the due process of law provisions of Const., art. I, sec. 5, and U. S. Const. Amend., 14. Merchants & Plant- ers Bank v. Brigman (91 S. E. 332), 106 S. C. 362.
CONTINUANCE.
1. An order granting a continu- ance, provided costs be paid within 20 days is complied with where payment is made imme- diately upon the Court's con- firmation of the clerk's taxation. Saine v. Hertzog (91 S. E. 859), 106 S. C. 501.
1. Plaintiff held not entitled to re- cover for excess shown by a sur- vey completed subsequently to the 90-day period provided in a contract for the partition of lands, the contract providing that in event of failure the stated acreage should stand. Jennings
v. Bowman (91 S. E. 731), 106 S. C. 455.
2. To enforce a contract whereby a person contracts to dispose of real estate by will, the same proof is necessary as when he contracts to convey title by deed. Brown v. Golightly (91 S. E. 869), 106 S. C. 519.
3. An alleged oral contract by a person since deceased to will property to the plaintiff is void as within the statute of frauds. Brown v. Golightly (91 S. E. 869), 106 S. C. 519.
4. In action of claim and delivery for sawmill, where the issue was as to amount due, held defend- ant was entitled to compensation for boards manufactured and de- livered, and for cutting and hacking of lumber for plaintiffs. Griggs v. Graves (91 S. E. 319), 106 S. C. 431.
5. In an action for specific per- formance of a contract for the sale of lands for flowage pur- poses, decision of Supreme Court on appeal, that no contract had been made, and that the parties he restored to their original status, did not require defend- ant to surrender a deed from plaintiff to lands not in dispute, and to withdraw the water there- from, but merely restored the parties to their status as to mat- ters litigated and left them to litigate such matters as if no contract had been made. Adams v. Georgia-Carolina Power Co. (90 S. E. 702), 106 S. C. 162.
6. A contract for sale of machin- ery, by which the seller agreed to correct any defects which might develop within 30 days, covers latent as well as patent defects, and the purchaser can- not recover for breach of war- ranty as to latent defects dis- covered at any time within 6 years after original use. West- inghouse Electric & Mfg. Co. v. Glencoe Cotton Mills (90 S. E. 526), 106 S. C. 133.
7. Under a contract for sale of machinery, by which the seller agreed to correct defects dis-
covered within 30 days, he is en- titled to a reasonable time with- in which to replace the defective parts. Westinghouse Electric & Mfg. Co. v. Glencoe Cotton Mills (90 S. E. 526), 106 S. C. 133.
8. Where seller agreed to correct defects of machinery discovered within 30 days, purchaser was entitled to prove all defects re- sulting within 30 days and all damages proximately resulting therefrom after a lapse of suffi- cient time to correct them; the liability being fixed at such time. Id.
9. Under a contract for sale of machinery, by which the seller agreed to correct defects dis- covered within 30 days, the pur- chaser is entitled to recover only such damages as proximately re- sult from failure to correct de- fects within a reasonable time, and after due notice. Westing- house Electric & Mfg. Co. v. Glencoe Cotton Mills (90 S. E. 526), 106 S. C. 133.
10. Where seller agreed to correct defects of machinery discovered within 30 days, it was the pur- chaser's duty to reasonably exert itself to minimize damages, and such as might have been averted are not proximate and cannot be recovered.
Life & Trust Co. (90 S. E. 319), 106 S. C. 37.
13. In an action for the balance due for material and labor, it was proper to exclude answer to the question, "You know that there was a provision in this con- tract for a penalty for failure to finish work in proper time, did you not?" since the contract, be- ing in writing, must speak for itself. Guimarin V. Southern Life & Trust Co. (90 S. E. 319), 106 S. C. 37.
14. A contract reading that it was agreed that defendant sold to plaintiff 200 bales of lint cotton at 11 cents a pound, to be settled for at the difference ruling in S. on day of delivery, to be de- livered between certain dates, which was not signed by defend- ant, and a signed letter from de- fendant to plaintiff stating that he objected to the wording of the contract, refused to sign it, and was returning it, did not consti- tute such a note or memorandum of the contract for the sale of
cotton, signed by the party charged, as satisfied the statute of frauds. Harby v. Wilson (90 S. E. 183), 106 S. C. 7. 15. It is not competent to prove by oral testimony any of the essen- tial elements of a contract which the statute of frauds requires to be in writing, such testimony be- ing only competent to connect different writings, which must themselves contain all the essen- tial elements of the contract, the party to be charged acknowledg- ing in writing that they do. Harby v. Wilson (90 S. E. 183), 106 S. C. 7.
in issue the company's corporate capacity. Westchester Fire Ins. Co. v. Bollin (90 S. E. 327), 106 S. C. 45.
2. Where minority stockholders by cumulating votes secured elec- tion of a majority of directors on returns, and chairman de- clared election void, and minori- ty withdrew, an election by ma- jority owners of the stock, after reconsideration of the first elec- tion, in the absence of any re- strictive provisions of constitu- tion and by-laws, was valid. State v. Ellison (90 S. E. 699), 106 S. C. 139.
3. Where Court concluded that three of relators were duly elect- ed directors of corporation and were entitled to their offices, and they were excluded from their offices, judgment dismissing peti- tion for possession of corporate property would be reformed to declare that they were directors and entitled to exercise the duties of their office. State v. Ellison (90 S. E. 699), 106 S. C. 139.
1. Where a judgment against a railroad for overcharge of freight rate and statutory pen- alty was affirmed on condition that the plaintiff within 20 days remit the penalty and plaintiff complied with the condition, the judgment was an affirmance, and plaintiff, as prevailing party, was entitled to the costs of ap- peal. Spence v. Southern Ry. Co. (90 S. E. 750), 106 S. C. 169. See Continuance. Saine v. Hertzog (91 S. E. 859), 106 S. C. 501. See Executors and Administra- tors. Herndon v. Caine (91 S. E. 1), 106 S. C. 230.
1. In view of Const., art III, sec. 1, provisions of article VII, secs. 1, 2, relating to establishment of counties, are directory and not mandatory, so that act Feb. 1912 (27 St. at Large, p. 841), forbidding establishment of counties out of territory of cer-
1. State Courts have jurisdiction of actions to recover overcharges of freight rates on interstate shipments, where no question of the reasonableness of the rate is
involved. Spence V. Southern Ry. Co. (90 S. E. 750), 106 S. C. 169.
See Magistrates. State v. Mellette (91 S. E. 4), 106 S. C. 224; Barnes v. C. & W. C. Ry. Co. (90 S. E. 1017), 106 S. C. 227. See Criminal Law. State v. Waller (91 S. E. 311), 106 S. C. 297.
CRIMINAL LAW.
1. An instruction held not erro- neous as failing to charge that the defendant was entitled to the benefit of every reasonable doubt on every material point, or as failing to charge the meaning of reasonable doubt. State v. Shu- man (90 S. E. 596), 106 S. C. 159. 2. A Judge has no right to threat- en or intimidate a jury or unduly detain them in order to affect their deliberations. State v. Shu- man (90 S. E. 596), 106 S. C. 150.
3. Where the case was submitted at 5 o'clock and the jury were in the jury room until 11 o'clock next morning, when they ren- dered a verdict of guilty, an in- struction, intimating that the Judge would keep the jury three weeks if they did not agree, held error prejudicial to accused. State v. Shuman (90 S. E. 596), 106 S. C. 150.
4. Testimony of jurors in a crimi- nal case as to whether the charge of the trial Court coerced them into finding a verdict is im- proper. State v. Shuman (90 S. E. 596), 106 S. C. 150.
5. Exceptions, not argued on a criminal appeal, will not be con- sidered by the Supreme Court. State v. Shuman (90 S. E. 596), 106 S. C. 150.
6. In a prosecution for sale of liquor in which accused set up an alibi, instructions held to give fuli effect to alibi. State v. Grice (91 S. E. 383), 106 S. C. 279. 7. In a prosecution for murder, where defendant's testimony alone contradicted evidence by the State that deceased was un- armed and that defendant fol- lowed him to the scene of the difficulty, newly discovered evi- dence corroborating defendant's testimony is material and would probably change the result. State v. Wiley (91 S. E. 382), 106 S. C. 437.
8. Lack of diligence in producing evidence of witnesses who were in Court at the original trial held not shown, where accused did not know the witnesses were present at the difficulty or had personal knowledge thereof. State v. Wiley (91 S. E. 382), 106 S. C.
9. Newly discovered evidence, in a prosecution for murder, which corroborates defendant's testi- mony on material issues as to which his testimony alone contra- dicted that offered by the State, is not merely cumulative. State v. Wiley (91 S. E. 382), 106 S. E. 437.
10. Under Const., art. V, sec. 21, prescribing jurisdiction of magis- trate's Courts, such Court had no jurisdiction as to an obstruc- tion of a highway or neighbor- hood road, an indictable offense under common law, where the penalty therefor has not been so limited. State v. Mellette (91 S. E. 4), 106 S. C. 224.
11. Upon trial for illegal sale of liquor, defendant and his coun- sel, who were present and knew that the testimony was not signed by the witnesses as required by law and made no objection there- to, held to have waived such right. State v. Waller (91 S. E. 311), 106 S. C. 297.
12. In murder trial, it was error to admit testimony that witness heard men going by in the dark and a question, "Did you get him," replied to with the words, "Yes, but God damn it, I got him in the back," witness not identifying any of the voices. State v. Winfield (91 S. E. 327), 106 S. C. 392.
13. Testimony of one when ex- amined before a coroner's jury cannot be used against him on a subsequent prosecution for the homicide, as this would be to re- quire him to furnish testimony against himself; any admission or confession in such testimony not being free and voluntary. State v. Perry (91 S. E. 300), 106 S. C. 289.
14. Charge stating law if defend-
ant had renewed the initial diffi- culty was not erroneous as inti- mating that defendant did re- new the difficulty. State v. Stevens (91 S. E. 302), 106 S. C. 272.
15. Error in charge on self-defense held cured by following state- ment, so that if defendant de- sired clearer statement, he should have requested it. State V. Stevens (91 S. E. 302), 106 S. C. 272.
16. Where only part of charge was contained in case, it will be pre- sumed that correct law was charged in omitted portions, and error cannot be predicated on re- fusal of request. State v. Roof (91 S. E. 314), 106 S. C. 279. 17. In a criminal case, the Supreme Court cannot consider questions affecting the weight of the evi- dence, which is a matter for the trial Judge alone. State Hampton (91 S. E. 314), 106 S. C. 275.
18. A defendant accused of selling intoxicating liquor is not preju- diced by the refusal of the Court to reread to the jury on their request the testimony of a wit- ness as to sales made by accused and for which he had been con- victed. State v. Hampton (91 S. E. 314), 106 S. C. 275.
19. Error in admission against de- fendant in homicide of his testi- mony at the coroner's inquest is not harmless because of evidence of a similar declaration by him elsewhere. State v. Perry (91 S. E. 300), 106 S. C. 289. 20. Refusal of requests covered by charge given is not error. State v. Roof (91 S. E. 314), 106 S. C. 279.
21. In a prosecution for homicide, if the jury finds a verdict of guilty of murder, they have the right to add, if they see proper, a recommendation to mercy which will reduce the punishment to imprisonment in the State penitentiary for life. State v. Stevens (91 8. E. 302), 106 S. C.
23. Where defendants were con- victed of larceny principally on the testimony of a small boy, who claimed to have seen the taking, motion for new trial, on affidavit of another that the boy, after the trial, had stated he did not see the taking, was properly refused. State v. Raysor (91 S. E. 311), 106 S. C. 287.
24. Refusal of the trial Court to hear the motion for new trial, on the ground of error in not strik- ing the testimony of a witness, does not require a reversal, where the record does not show that a motion to strike was made, or that the Court refused to hear the motion for new trial. State v. Hampton (91 S. E. 314), 106 S. C. 275.
25. The rule requiring facts stated in an exception to be based on an independent statement of those facts in the case is not merely technical, but should be strictly enforced in a criminal case. State v. Hampton (91 S. E. 314), 106 S. C. 275.
CROSS-EXAMINATION.
See Witnesses. State v. Grice (91 S. E. 307), 106 S. C. 280.
CROSSING ACCIDENTS.
See Railroads. White v. A. C. L. R. R. Co. (91 S. E. 323), 106 S.
C. 337; Callison v. C. & W. C. Ry. Co. (90 S. E. 260), 106 S. C.
CUSTOMS AND USAGES. 1. While custom may be relevant in doubtful cases, a general cus- tom was irrelevant where there was no doubt at the time of the trial. Bailey v. Savannah Guano Co. (90 S. E. 317), 106 S. C. 50. See Insurance. Westchester Fire Ins. Co. v. Bollin (90 S. E. 327), 106 S. C. 45.
1. Where seller agreed to correct defects of machinery discovered within 30 days, purchaser was entitled to prove all defects re- sulting within 30 days and all damages proximately resulting therefrom after a lapse of suffi- cient time to correct them; the liability being fixed at such time. Westinghouse Electric & Mfg. Co. v. Glencoe Cotton Mills (90 S. E. 526), 106 S. C. 133.
2. Under a contract for sale of machinery, by which the seller agreed to correct defects dis- covered within 30 days, the pur- chaser is entitled to recover only such damages as proximately re- sult from failure to correct de- fects within a reasonable time, and after due notice. Westing-- house Electric & Mfg. Co. v. Glencoe Cotton Mills (90 S. E. 526), 106 S. C. 133.
3. Where seller agreed to correct defects of machinery discovered within 30 days, it was the pur- chaser's duty to reasonably exert itself to minimize damages, and such as might have been averted are not proximate and cannot be recovered. Id.
4. The principle that one injured by the negligence of another must reasonably exert himself to minimize his damages is not ap- plicable to the case of a tender of goods wrongfully refused, so as to place any duty on the tenderee on the tenderers' failing in their duty of taking care of the goods, because, the goods being in the tenderers' possession, the ten-
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