1. An action between dealers in
cotton, the chief differences be-
tween the parties being as to
some of the terms of the contract
between them and the price of
cotton on certain dates, was not
triable in equity, by the Court
and not by the jury, on the
ground that it involved long and
complicated accounts, since
party will not be deprived of his
right to jury trial, on the ground
that equity has jurisdiction of
actions involving long and com-
plicated accounts, unless the ac-
counts involved are not only long,
but too complicated for compre-
hension by an ordinary jury.
Gordon-McCabe & Co. v. Colleton
Mercantile & Mfg, Co. (90 S. E.
161), 106 S. C. 25.
ACTIONS, JOINDER OF.
1. A complaint against a bank
alleged that plaintiff was a de-
positor, and drew two checks on
his account, which the bank re-
fused to pay, though plaintiff
had funds on deposit sufficient
to cover the checks, and that,
when plaintiff demanded the rea-
son, the bank's cashier stated
that a third person claimed to
be entitled to the funds deposited
by plaintiff, and the complaint
alleged injury to plaintiff's
credit, and a wilful disregard of
his right to have his checks paid
on presentation. Held, that the
complaint did not state two
causes of action, the refusal to
pay the check being a part and
the result of the one transaction,
the resultant injury to plaintiff
being the same, or rather cumula-
tive. Raftelis v. Bank of George-
town (91 S. E. 317), 106 S. C.
315.
ACKNOWLEDGMENT.
See Chattel Mortgages. Dillon v.
Oliver (91 S. E. 604), 106 S. C.
410.
1. 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
require 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.
ADVERSE POSSESSION.
1. Deeds executed by a father to
his children of parts of the land
subsequently claimed by them to
have been included in his prior
deed to them tend to show the
character of his possession, con-
tinued for more than 30 years
after the prior deed. Metz v.
Metz (91 S. E. 864), 106 S. C.
1. Under contract of employment
as salesman, held, that commis-
sions above salary depended
upon sales accepted and ap-
proved, and not on goods de-
livered. Bailey v. Savannah
Guano Co. (90 S. E. 317), 106
S. C. 50.
2. In salesman's action upon con-
tract for salary on certain
amount of sales, and commissions
for excess sales, employer's let-
ter offering employment on cer-
tain terms, being simply the act
of one party to the contract, was
irrelevant. Bailey v. Savannah
Guano Co. (90 S. E. 317), 106
S. C. 50.
3. Insurance agents. See West-
chester Fire Ins. Co. v. Bollin
(90 S. E. 327), 106 S. C. 45.
4. Commission merchant or factor.
See Principal and Agent. Gor-
don-McCabe & Co. v. Colleton
Mercantile & Mfg. Co. (90 S. E.
161), 106 S. C. 25.
1. In a prosecution for sale of
liquor, in which the accused set
up an alibi, instructions that,
"The sole question for your de-
termination is whether or not
the accused sold one-half pint of
whiskey to ***
as alleged in this
bill of indictment," and "take
along with you the sole issue in
the case, give the defendant the
benefit of every reasonable
doubt," and that if defendant
was not at the place where he is
alleged to have sold the whiskey,
he could not have committed
the crime, gave full effect to the
defendant's alibi, since the alibi
was merely the means of dis-
proving the charge. State V.
Grice (91 S. E. 383), 106 S. C.
279.
AMENDMENTS.
1. Where defendant was not al-
lowed to amend his answer to
plead his counterclaim, but was
allowed to prove under his gen-
eral denial the matters sought
to be pleaded as a counterclaim,
he was not prejudiced. Guimarin
v. Southen Life & Trust Co. (90
S. E. 319), 106 S. C. 37.
2. The trial Court had power to
allow amendment of the answer
to conform to the facts adduced
on trial, even though it might
have been necessary to withdraw
the case from the jury and con-
tinue it to prevent prejudice to
plaintiff. Skudowitz V. Basha
(91 S. E. 86%), 106 S. C. 541.
3. The refusal to allow defendants
to amend their answer to con-
form to the facts adduced on
trial was not an abuse of the
trial Court's discretion, especial-
ly where, if the evidence was
offered merely to reduce the
amount of plaintiff's recovery as
the value of the goods, the
amendment was unnecessary to
support it, and where, if the evi-
dence was to defeat plaintiff's
cause of action entirely under the
claim that the sale had been
rescinded, there was no showing
by defendants of surprise; that
they intended to make the de-
fense and believed their answer
sufficient. Skudowitz v. Basha
(91 S. E. 868), 106 S. C. 541.
1. If upon an inspection of the
pleadings it manifestly appears
that the answer is sham or
frivolous, the trial Court can
strike it and give judgment if
upon an examination of the
pleadings it appears from them
without extraneous outside evi-
dence, such as affidavits, that the
answer is false, it can be strick-
en and judgment rendered.
Adams v. Jackson (91 8. E. 863),
106 S. C. 544.
2. Where in a law case, an answer
puts in issue material facts al-
leged in the complaint; these
issues must be tried by a jury in
the manner provided for by law,
and not by the Judge upon ex
parte affidavits. Adams v. Jack-
son (91 S. E. 863), 106 S. C. 544.
3. Where defendant was not al-
lowed to amend his answer to
plead his counterclaim, but on
the trial was allowed to prove
under his general denial the mat-
ters sought to be pleaded as a
counterclaim, he was not preju-
diced. Guimarin v. So. Life &
Trust Co. (90 S. E. 519), 106 S.
C. 37.
4. A denial on information and
belief of an allegation that plain-
tiff was a corporation engaged
in insuring property, does not
put in issue the company's cor-
porate capacity. Westchester
Fire Ins. Co. v. Bollin (90 S. E.
327), 106 S. C. 45.
APPEAL AND ERROR.
1. Where, in an action on a con-
tract, plaintiff relied on defend-
ant's waiver of his strict per-
formance, a verdict for defend-
ant without exception thereto
carried the issue of waiver out
of the case. Jennings v. Bowman
(91 S. E. 731), 106 S. C. 455.
2. An exception that permission
to dismiss the case was erroneous
because the pleadings had been
completed and cause ready for
trial is too indefinite. Southard
v. Marlboro Agricultural Co. (91
S. E. 976), 106 S. C. 507.
3. An order granting a new trial
based upon questions of fact and
where the Supreme Court cannot
render an absolute judgment is
not appealable. Blassingame v.
Greenville Co. (91 S. E. 861),
106 S. C. 511.
4. The jury's first finding, that
the land sought to be partitioned
was not included in the deed
under which plaintiffs claim,
being conclusive against their
right, the order denying, as re-
gards such finding, their motion
to set aside the findings, was a
final judgment as regards appeal
by them, though setting aside the
second finding that the deed was
not delivered, and granting a
new trial as to such question.
Metz v. Metz (91 S. E. 799), 106
S. C. 514.
5. Only those appealing can ques-
tion correctness of the decree al-
lowing attorney's fee to be paid
from decedent's estate. In re
Coleman (91 8. E. 861), 106 S. C.
534.
5. Notice given in due time of in-
tention to appeal from an order
striking out defendant's answer
and rendering judgment against
her did not operate as a super-
sedeas and stay further proceed-
ings thereon, and the entry of
judgment by the Clerk after the
notice of appeal had been
brought to his attention and filed
was not improper. Adams v.
Jackson (91 S. E. 863), 106 S. C.
7. Where counsel for accused ad-
Imitted that he failed to detect the
errors in the Court's charge when
it was read, but only discovered
them after carefully examining
the written charge furnished by
the stenographer, the errors were
harmless. State v. Wiley (91 S.
E. 382), 106 S. C. 437.
8. Where only a part of the
charge of the Court was con-
tained in the case, it will be pre-
sumed that the correct law was
charged in the omitted portions,
and error cannot be predicated
on the refusal of requests. State
v. Roof (91 S. E. 314), 106 S. C.
281.
9. Where there was sufficient evi-
dence to submit case to the jury,
no additional grounds for sus-
taining a directed verdict can
be considered on appeal urless
shown that plaintiff could not in
any event succeed. Stallings v.
Atlantic Life Ins. Co. (91 S. E.
290), 106 S. C. 318.
10. Where there was evidence suffi-
cient to support the finding of
Circuit Court, reversing on ap-
peal, a judgment of a magistrate,
the determination will not be dis-
turbed because it might have
been better had the Circuit Court
in exercise of its discretion
recommitted the case to the mag-
istrate for a clearer statement of
the issues. Ellis v. Jenkins (91
S. E. 306), 106 S. C. 340.
11. Where a railroad in a suit for
wages admitted owing the wages,
but alleged that they were with-
held because another had pre-
sented plaintiff's power of attor-
ney to collect the wages, notified
the attorney under that power
to come in and defend, and asked
the Court's directions as to pay-
ing the wages, and the attorney,
though not joining as a party,
testified as a witness and ad-
mitted that he had returned the
power of attorney to the plaintiff
at the latter's request to avoid
causing his discharge, an appeal
by the railroad from a judgment
for the plaintiff presented only
academic questions, and will be
dismissed. Davis v. A. C. L.
R. R. Co. (91 S. E. 325), 106 S.
C. 351.
12. Under Code Civ. Proc. 1902,
sec. 368, providing that if de-
fendant fails to appear before
the magistrate, and if it is shown
by the affidavit served by appel-
lant, or otherwise, that manifest
injustice has been done, and he
satisfactorily excuses his de-
fault, the Court may, in its dis-
cretion, set aside or suspend a
default judgment, and order a
new trial, the revocation of an
order staying proceedings on
such judgment, in the absence of
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