not be disturbed because it might
have been better had Circuit
Court in its discretion recom-
mitted case to magistrate for
clearer statement of issues. El-
lis v. Jenkins (91 S. E. 306),
106 S. C. 340.
5. Formerly an action could be
commenced by attachment, but
now it is only a provisional
remedy in aid of the action, and
if the attachment proceedings
should be set aside for irregu-
larity or other ground, it would
not deprive the magistrate of
jurisdiction to try the case on its
merits, but if the plaintiff should
fail to recover judgment, the at-
tachment proceedings would be-
come inoperative. Mims v. Gar-
vin (91 8. E. 289), 106 S. C. 381.
6. In an action in which attach-
ment was procured, a motion to
dismiss on the ground that the
allegations of the complaint were
not sufficient to constitute
cause of action, in that they
failed to show where plaintiff
obtained his information that de-
fendant was disposing of his
property with intent to defraud
his creditors, though not de-
nominated a demurrer, consti-
tuted a general appearance con-
ferring jurisdiction on the mag-
istrate to hear the case. Id.
MARSHALLING ASSETS.
See Notice. Wheeler v. Corley (91
S. E. 307), 106 S. C. 319.
MANSLAUGHTER.
See Criminal Law and Charge to
Juries. State v. Shuman (90 S.
E. 596), 106 S. C. 150.
MASTER AND SERVANT.
1. Evidence of the master's negli-
gence in a brakeman's action for
injury in turning a switch, then
breaking or theretofore broken,
held sufficient to go to the jury.
Ballenger v. Southern Ry. Co.
(90 S. E. 1019), 106 S. C. 200.
2. Evidence, in a servant's action
for injury to a brakeman in turn-
ing a switch, then breaking or
theretofore broken, held not to
show plain, open, and obvious de-
fect, as regards assumption of
risk. Ballenger v. Southern Ry.
Co. (90 S. E. 1019), 106 S. C.
200.
3. Where a railroad servant was
killed in the yard of another
railroad after leaving the only
track which defendant was using
and going under a car on another
track to make an entry in his
book, there was no negligence
proven against defendant, and it
was entitled to a directed ver-
dict. Stone v. C., N. & L. R. R.
Co. (91 S. E. 320), 106 S. C. 433.
4. The issue of fact whether the
State or Federal law is applica-
ble in the case of fatal injury
to a railroad employee should
be submitted to the jury, there
being evidence from which rea-
sonable inference could be drawn
that neither he nor the train
from which he fell was, at the
time, engaged in interstate com-
merce. Seyle v. Charleston Ter-
minal Co. (90 S. E. 1016), 106
S. C. 215.
5. In an action by plaintiff against
a railway, its freight agent, and
two assistant freight agents, for
damages from the bite of a cat
allowed to be on the railroad's
premises while plaintiff was
there on business, alleging that
it was known by the defendants
to be vicious, that it had rabies,
and that plaintiff suffered the
administration of Pasteur's
treatment to prevent hydropho-
bia, a directed verdict for the
agent, leaving the liability of
the others to the jury, which re-
turned a verdict against the
railroad alone, could not stand,
where no delict of the company
was proved other than through
the assistant agent. Jones v.
So. Ry. Co. (90 S. E. 183), 106
S. C. 20.
6. Such verdict could not be sus-
tained, where the railroad's lia-
bility was predicated solely upon
the conduct of its agents under
the doctrine respondeat superior,
since if the railroad was liable to
the plaintiff, the agents whose
wrongful acts caused the injury
were liable over to it for the
amount it would be compelled to
pay on the verdict, of which
remedy the judgment of ac-
quittal deprived the railroad.
Id.
4. Under Code Civ. Proc. 1912,
sec. 218, as to joinder of causes
of action, a Court may in one
decree give judgment for the
amount due on a mortgage, and
also direct a sale of the mort-
gaged property. Barron v. So.
Scale & Fixture Co. (91 S. E.
321), 106 S. C. 342.
5. Under Code Civ. Proc. 1912,
sec. 304, defining a "judgment"
as a final determination of the
right of the parties, a decree in
mortgage foreclosure, which
after finding defendant owed
plaintiffs a certain sum, directed
its payment on or before a cer-
tain date, and sale in default of
sufficient
payment, was
judgment; the further direction,
that if the proceeds of sale were
insufficient to pay such amount
the master should report the de-
ficiency and that plaintiff should
have judgment therefor, being
mere surplusage. Id.
6. See Merger. S. C. Ins. Co. v.
Cook (91 S. E. 728), 106 S. C.
461.
7. The master was not a trustee
of an express trust within the
statute and was not a proper
party plaintiff to foreclose bonds
and mortgage held by him mere-
ly as custodian for infants and
adults. McFadden v. Clark (91
S. E. 799), 106 S. C. 495.
See Chattel Mortgages. Dillon
v. Oliver (91 S. E. 304), 106 S.
C. 410.
See Judgments. Barron V. So.
Scale & Fixture Co. (91 S. E.
321), 106 S. C. 342.
MUNICIPAL BONDS.
See Taxation. Carolina National
Bank v. Spigner (90 S. E. 748),
106 S. C. 185. Statutes. Furman
v. Willimon (90 S. E. 700), 106
S. C. 159.
MUNICIPAL CORPORATIONS.
1. Statute making city liable for
injuries occurring "through a
defect in any street" includes
keeping street in such physical
condition that it is reasonably
safe for street purposes. Bur-
nett v. Greenville (91 S. E. 203),
106 S. C. 255.
2. A city is liable for personal
injuries resulting from permit-
ting the use of streets for rac-
ing and testing automobiles;
such streets not being reasonably
safe for ordinary street purposes.
Burnett v. Greenville (91 S. E.
203), 106 S. C. 255.
3. Under the statute stating the
charter powers and providing
that the town council shall have
full power to make regulations
as to streets of the town neces-
sary and proper for security,
welfare, and convenience, the
town council of West Greenville
had power to close two streets
which railroad
about to put eight or ten tracks,
as a measure for safety within
the town police power. Batson
v. So. Ry. Cô. (91 S. E. 310),
4. While a town has only the
power given it by the legisla-
ture, that does not mean that the
power to do each particular act
must be specifically granted. Id.
5. Though Courts are open to
award damages for invasion of
private rights, they are not jus-
tified in keeping open a danger-
ous street while doubtful rights
are being litigated. Id.
MASTER IN EQUITY.
1. In view of Civ. Code 1912, secs.
1379 and 1380, in proceeding by
creditors of estate of intestate
to have deed executed to wife
declared fraudulent, held, that
appointment of special master
clothed him with powers of regu-
lar master until conclusion of
case. Barrett & Co. v. Still (91
S. E. 735), 106 S. C. 449.
2. In an action by a creditor of
the estate of an intestate to set
aside as fraudulent a deed by
decedent to wife, in which wife
claims homestead and dower, ac-
tion of master in establishing
fees for plaintiff's attorney in
advance of the sale of property
held premature, and an excep-
tion thereto will be sustained.
Barrett & Co. v. Still (91 S. E.
735), 106 S. C. 449.
3. In action by a creditor of the
estate of an intestate to set aside
as fraudulent a deed by decedent
to wife, in which wife claims
homestead and dower, exceptions
to a homestead appraisement
which do not contain evidence to
establish claim that assessments
were excessive and wrongful will
be overruled. Barrett & Co. v.
Still (91 S. E. 735), 106 S. C.
449.
4. In an action by creditors of
the estate of an intestate to set
aside as fraudulent a deed by
decedent to wife, in which wife
claims homestead and dower,
where decree did not direct
method to determine homestead
and dower, and plaintiff's attor-
ney represented creditors' class
and selected an appraiser, any
other creditor is estopped to ob-
ject to action of master in order-
ing the appraisement. Barrett &
Co. v. Still (91 S. E. 735), 106
S. C. 449.
1. Where one while having legal
ownership of land took bare
legal title by assignment of an
incumbrance on the land, evi-
denced by bond, mortgage, and
note, for the sole purpose of re-
assigning, and without delivery
or right to possession of the
papers except by paying the ob-
ligation due the bank to whom
he assigned, there was no merger,
and the obligation of the mort-
gage was not extinguished. S. C.
Ins. Co. v. Cook (91 S. E. 728),
106 S. C. 461.
1. In an action to foreclose a pur-
chase-money mortgage on a par-
cel of land alleged to contain a
certain number of acres, evidence
held insufficient to establish de-
fendant's contention that the
parcel did not contain such num-
ber of acres when plaintiff con-
veyed. Wright v. Seale (91 S.
E. 261), 106 S. C. 261.
2. In an action to foreclose a pur-
chase-money mortgage, an attor-
ney's fee of 10 per cent. was
reasonable. Id.
3. In suit foreclosing a mortgage,
where it appeared that in the
deeds of the property to the mort-
gagor from her deceased hus-
band, the habendum read, "Unto
the said L. (mortgagor) during
her natural life, and at her death
to be equally divided between the
body issue of H. P. (grantor)
and L.," and to "her heirs and
assigns forever," and that some
of their children were living at
the date of the deeds and were
still living, such children were
parties necessary to be brought
in under section 171 of Code Civ.
Proc. 1912, as to bringing in par-
ties necessary to the determina-
tion of a controversy. Bank of
Prosperity v. Dominick (91 S. E.
264), 106 S. C. 120.
4. Form of decree in foreclosure
of mortgage. Barron v. So.
Scale & Fixture Co. (91 S. E.
321), 106 S. C. 342.
1. Evidence of the master's negli-
gence in a brakeman's action for
injury in turning a switch, then
breaking or theretofore broken,
held sufficient to go to the jury.
Ballenger v. Southern Ry. (90
S. E. 1019), 106 S. C. 200.
2. As to negligence of fire insur-
ance agent. See Insurance.
Westchester Fire Ins. Co. v. Bol-
lin (90 S. E. 327), 106 S. C. 45.
3. In absence of statute or ordi-
nance requiring particular cross-
ing to be flagged, negligence can-
not be predicated upon failure
to do so, unless flagman was re-
quired in ordinarily prudent
operation of railroad. Callison
v. Charleston & W. C. Ry. Co.
(90 S. E. 260), 106 S. C. 123.
4. Failure of railroad company to
give signals required by statute
at public crossing is negligence
per se. Callison v. Charleston
& W. C. Ry. Co. (90 S. E. 260).
106 S. E. 123.
5. Where defendant railroad com-
pany was guilty of recklessness
and wantonness in failing to give
statutory crossing signals, con-
tributory negligence of plaintiff,
who was run down by company's
train, is no defense. Callison v.
Charleston & W. C. Ry. Co. (90
S. E. 260), 106 S. C. 123.
6. In crossing accident case, ques-
tion whether railroad company
was guilty of negligence in fail-
ing to maintain flagman at cross-
ing, in view of obstruction of
vision of trainmen and travelers
by reason of rain and storm,
held under evidence for jury.
Callison v. Charleston & W. C.
Ry. Co. (90 S. E. 260), 106 S. C.
8. Though railroad company's
servants positively testified the
bell was rung for the crossing,
testimony by plaintiff that his
hearing was good and that he
did not hear the bell, raises ques-
tion for jury; credibility of wit-
nesses being for jury. Callison
v. Charleston & W. C. Ry. Co.
(90 S. E. 260), 106 S. C. 123.
9. Failure of railroad company
to give required statutory signals
at public crossing warrants in-
ference of wilful and wanton
negligence, requiring submission
of that question to jury. Calli-
son v. Charleston & W. C. Ry.
Co. (90 S. E. 260), 106 S. C. 123.
10. A railroad may assume that, at
a passenger station with five
tracks on which trains continu-
ously moved in both directions
receiving and discharging pas-
sengers, a pedestrian would take
reasonable precaution against
the approach of a train. Mose-
ley v. Carolina, C. & O. Ry. of
South Carolina (91 S. E. 380),
106 S. C. 368.
11. It is a question for the jury
what duties, if any, a railroad
owed a pedestrian who crossed
tracks diagonally and walked
along and between the rails, and
whether it gave such notice as
was reasonable. Moseley v. Car-
olina, C. & O. Ry. of South Caro-
lina (91 S. E. 380), 106 S. C.
368.
12. Where injured pedestrian, leav-
ing station, walked diagonally
across and between and along
tracks in train yard where trains
were constantly passing and was
injured, the Court sufficiently in-
structed on the railroad's duty
to warn of approaching trains
when it said that it was the duty
of those in charge of the train
to give notice at all points of
known or reasonably apprehend-
ed danger. Moseley v. Carolina,
C. & O. Ry. of South Carolina
(91 S. E. 380), 106 S. C. 368.
See Carriers. Harman v. So. Ry.
Co. (90 S. E. 1023), 106 S. C. 209.
NEGOTIABLE INSTRUMENTS
See Bills and Notes. Norwood
National Bank v. Piedmont Pub.
Co. (91 S. E. 866), 106 S. C. 472.
1. Newly discovered evidence, in
a prosecution for murder, which
would corroborate defendant's
testimony, that deceased was
armed and that he called defend-
ant to the place of the difficulty
instead of defendant following
him, is not "cumulative," where
defendant's testimony alone con-
tradicted that offered by the
State on those issues, augmenting
or giving force to the evidence
or increasing it by successive ad-
ditions. State v. Wiley (91 S. E.
382), 106 S. C. 437.
2. Lack of diligence by accused
in securing the testimony at the
former trial of witnesses present
in Court at that time is not
shown, where he did not know
that the witnesses were present
at the difficulty, or had any per-
sonal knowledge of it, where the
witnesses were white men and
the defendant colored. Id.
3. 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 of other witnesses cor-
roborating defendant's testimony
is material and would probably
change the result. Id.
4. At hearing on motion for new
trial on minutes, affidavits on
which defendant asked for
new trial for after-discovered
evidence, cannot be considered
where not served on plaintiff to
whom no notice of motion for
new trial on that ground was
given. Callison v. Charleston &
W. C. Ry. Co. (90 S. E. 260), 106
S. C. 123.
5. Where defendants were con-
victed of larceny principally on
the testimony of a small negro
boy, who claimed to have seen
the taking, motion for new trial,
based on affidavit of another that
the boy, after the trial, had
stated he did not see and could
not have seen the taking, was
properly refused; the offered
testimony being merely hearsay.
State v. Raysor (91 S. E. 311),
106 S. C. 287.
6. Appeal from order granting
new trial. See Appeal and Er-
ror. Blassingame v. Greenville
Co. (91 S. E. 861), 106 S. C. 511;
Parham etc. Co. v. Atlantic Life
Ins. Co. (90 S. E. 1022), 106 S. C.
211; Metz v. Metz (91 S. E. 864),
106 S. C. 514.
NEWLY DISCOVERED EVI-
DENCE.
See New Trial. State v. Raysor
(91 S. E. 311), 106 S. C. 287;
State v. Wiley (91 S. E. 382),
106 S. C. 437.
1. Notice is always largely a ques-
tion of fact, dependent upon all
the circumstances of the particu-
lar case. Wheeler v. Corley (91
S. E. 307), 106 S. C. 319.
2. "Notice" that land owned by
another was also liable on a first
mortgage debt, etc., held suffi-
cient to put subsequent mort-
gagees on inquiry amounting to
notice that the other person was
a mere surety, so that they were
not bona fide creditors without
notice, entitled to have the first
mortgage satisfied from the sale
of the other land under the two
fund doctrine. Wheeler v. Cor-
ley (91 S. E. 307), 106 S. C. 319.
3. Evidence held insufficient to
show that one defendant, in pur-
chasing from the other, had
notice of fraud by which the
other secured a deed, so as to
put him on inquiry. Tuten v.
McAlhaney (91 S. E. 328), 106
S. C. 328.
4. Act 1915 (27 St. at Large, p.
737), sec. 1, being a public act,
puts the whole world on notice
that the claim of one who sus-
tains personal injury or property
damages from the illegal or
negligent operation of a motor
vehicle, is superior to that of any
other person, except the State
and county, and a mortgagee
takes with notice of the act.
Merchants and Planters Bank v.
Brigman (91 8. E. 332), 106 S. C.
362.
OBSTRUCTING HIGHWAYS.
See Highways. State v. Mellette
(91 S. E. 4), 106 S. C. 224.
PARTIES.
1. Where decree provided that
bonds representing interest pay-
ments of mortgage which was
the share of minor defendants
were to be executed and de-
livered to the master to be held
until infants' majority or to be
turned over to their duly author-
ized guardian, and that bonds
which were the share of adult
defendants be assigned to them
by the master, the master was
not a trustee of an express trust
within the statute, and was not
a proper party plaintiff to fore-
close the mortgage, being merely
a custodian thereof. McFadden
v. Clark (91 S. E. 799), 106 S. C.
495.
2. In suit foreclosing a mortgage,
where it appeared that in the
deeds of the property to the
mortgagor from her deceased
husband, the habendum read,
"Unto the said L. (mortgagor)
during her natural life, and at
her death to be equally divided
between the body issue of H. P.
(grantor) and L.," and to "her
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