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 parties necessary to
the determination of a contro-
versy. Bank of Prosperity v.
Dominick (90 S. E. 264), 106
S. C. 120.
1. It must be presumed, from
judgment ordering sale of land
for partition, that the Court con-
sidered and adjudicated the
regularity and sufficiency of
every step in the proceedings
leading up to it, including the
sufficiency of the complaint, the
issuance and service of process
on defendants, and the rights
and interests of the parties to the
action under the allegations and
evidence, and, though the con-
clusions might have been erro-
neous and reversible on appeal,
they would not make the judg-
ment void collaterally. Gladden
v. Chapman (91 S. E. 796), 106
S. C. 486.
2. The will alleged in the com-
plaint for partition and set up
in the answer as the source of
defendants' title is admissible in
evidence. Metz v. Metz (91 S. E.
864), 106 S. C. 514.
3. A contract for the partition
of lands owned by the parties
as tenants in common provided
that each party should have the
right to survey the lands, and any
excess or shortage in acreage
over the acreage stated in the
deeds should be paid for or de-
ducted at the rates therein; the
surveys to be made within 90
days from the date of the con-
tract, or otherwise the acreage
stated in the deeds should stand.
Plaintiff did not complete the
survey within 90 days, and de-
fendant denied his request for
an extension of time. Held, that
the contract made time of its
essence, and plaintiff could not
recover for an excess shown by
a survey subsequently made.
Jennings v. Bowman (91 S. E.
731), 106 S. C. 455.
1. In action on defendant's notes
given plaintiff in payment under
contract for fertilizer sold by de-
fendant to planters, where de-
fendant shipped to plaintiff cot-
ton received from planters with-
out direction on what debt to ap-
ply it, and plaintiff claimed this
was to be applied on another
indebtedness, evidence held suffi-
cient to submit case to jury.
Heyward-Williams Co. v. Zeigler
(91 S. E. 298), 106 S. C. 425.
2. Where defendant received cot-
ton from planters in payment for
fertilizer sold by defendant and
furnished by plaintiff under con-
tract, held that defendant took
the cotton as trustee for plaintiff,
to be applied on planters' notes,
and hence when plaintiff received
it from defendant, it could be
applied only on defendant's con-
tract indebtedness. Id.
See Carriers of Goods. Byrd v. A.
C. L. R. R. Co. (90 S. E. 181),
106 S. C. 1. Courts. Spence v.
So. Ry. Co. (90 S. E. 750), 106
S. C. 169.
1. An indictment under Cr. Code
1912, sec. 405, providing that
any one in possession of cocaine
or a mixture thereof, with cer-
tain exception, shall be guilty of
a misdemeanor, need not allege
that defendant wilfully and know-
ingly had possession of the co-
caine; those words not being used
in the statute. State v. Freeland
(91 S. E. 3), 106 S. C. 220.
2. Cr. Code 1912, sec. 405, pro-
viding that any person found in
possession of any cocaine or
compound thereof, etc., though
it does not include wilfulness or
knowledge as elements of the
offense, must be construed in the
light of the fundamental princi-
ple of common law that an evil
intent must concur with the act
to make it a crime. Id.
3. In a prosecution for possessing
cocaine, an instruction that de-
fendant should be acquitted if
she did not know that she had it
in her possession was too favor-
able to defendant, since culpable
ignorance of such fact would not
excuse her. Id.
4. In prosecution for unlawfully
possessing cocaine contrary to
Cr. Code 1912, sec. 405, the bur-
den is on defendant to show that
she was honestly ignorant of the
fact that she possessed cocaine,
and that her ignorance was not
due to her own fault. Id.
5. An indictment under Cr. Code
1912, sec. 405, making any per-
son having possession of cocaine
or a mixture thereof, except
when the vial containing it bears
the name of the physician pre-
scribing it and of the druggist
compounding it, guilty of a mis-
demeanor, must negative the ex-
ception, since it is included with-
in the enacting clause. Id.
POLICE POWER.
See Constitutional Law. Brennan
v. So. Express Co. (90 S. E. 402),
106 S. C. 102; Merchants &
Planters Bank v. Brigman (91
S. E. 332), 106 S. C. 362.
1. A complaint by grantees filed
in 1915, praying the reformation
of a deed on the ground of mis-
take, which alleged that the deed
was executed in 1872, and that
the grantor died in 1901, states
cause of action, though not
alleging when the mistake was
discovered or that the agreement
for the conveyance was in writ-
ing. Cook v. Knight (91 S. E.
312), 106 S. C. 310.
2. 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 checks being a part and
the result of the one transaction,
the resultant injury to plaintiff
being the same, or rather cu-
mulative. Raftelis v. Bank of
Georgetown (91 S. E. 317), 106
S. C. 315.
3. Under Civ. Code 1912, sec. 1972,
which provides that damage from
defective bridges shall not be re-
covered by a person injured “if
his load exceeded the ordinary
weight," in an action for injuries
received by a county employee
while working on a bridge, as
the complaint showed that plain-
tiff did not have a load, he was
not required to allege in his com-
plaint that his load did not ex-
ceed the ordinary weight. San-
ders v. York Co. (91 S. E. 305),
106 S. C. 374.
4. Merely because the complaint
in a partition suit did not state
facts sufficient to constitute a
cause of action against absent
defendants, the Court did not
fail to acquire jurisdiction of the
action as to them, there being no
connection between jurisdiction
and sufficient allegations. Glad-
den v. Chapman (91 S. E. 796),
106 S. C. 486.
5. In an action by the assignee of
a note, defendant's allegations
that plaintiff secured the note
after maturity, and that the as-
signor was his uncle, are insuffi-
cient to connect plaintiff with the
assignor's alleged wrongful acts
toward defendant. Southard v.
Marlboro Agricultural Co. (91
S. E. 976), 106 S. C. 507.
6. 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. 868), 106 S. C. 541.
7. 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, especially
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 evidence was to de-
feat 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 defense and believed
their answer sufficient. Id.
8. The answer of defendant de-
nying knowledge or informa-
tion sufficient to form a belief
as to the allegations in specific
paragraphs of the complaint put
in issue the allegations in the
paragraphs. Adams v. Jackson
(91 S. E. 863), 106 S. C. 546.
9. 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 stricken
and judgment rendered. Id.
10. Where in a law case, an answer
puts in issue material facts al-
leged in the complaint; these is-
sues must be tried by a jury in
the manner provided for by law,
and not by the Judge upon ex
parte affidavit. Id.
PRESUMPTIONS.
1. There is a presumption against
the surrender of the taxing pow-
er by the State. National Union
Bank v. Neil (90 S. E. 745),
106 S. C. 173.
2. Where the evidence warrants
a particular finding, and such
finding is necessary to support
a general verdict, it will be pre-
sumed to have been made; there-
fore, where the evidence war-
ranted such finding and it was
necessary to support the general
verdict for plaintiff, it will be
presumed the jury found defend-
ant guilty of wilful and wanton
negligence. Callison v. C. & W.
C. Ry. Co. (90 S. E. 260), 106
S. C. 123.
3. 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.
4. In an action for the killing of
plaintiff's colt, a letter by the
superintendent of the defendant
railroad company, that investi-
gation disclosed that the colt
ran into the train after the
engine had passed, is sufficient
showing to carry the case to the
jury on the presumption of negli-
gence arising from the killing,
notwithstanding the negligence
was denied. Ervin v. A. C. L.
R. R. Co. (91 S. E. 317), 106 S.
C. 354.
5. As to affirmance of magistrate
by Circuit Court on appeal.
Bagnal v. So. Express Co. (91
S. E. 334), 106 S. Č. 395.
6. In an action upon a life insur-
ance policy, defended on the
ground that the policy by its
terms was void in that insured,
when it was executed and de-
livered, had cancer, the burden
of establishing the defense was
on the defendant, and plaintiffs'
possession of the policy was
prima facie evidence of their
right to recover. Baker v.
Metropolitan Life Ins. Co. (91
S. E. 324), 106 S. C. 419.
See Judgments. Gladden v. Chap-
man (91 S. E. 796), 106 S. C.
486.
PRINCIPAL AND AGENT.
1. Under a contract of employ-
ment as traveling representative
at a salary based on producing
a business of 1,500 tons, and com-
missions on tonnage shipped to
his customers over and above
that amount, sales to be made
subject to the employer's ap-
proval, the commissions depended
upon the sales actually accepted
and approved, or the business
produced, and not on the goods
delivered. Bailey v. Savannah
Guano Co. (90 S. E. 317), 106
S. C. 50.
2. In a salesman's action upon a
contract for a salary based on a
certain amount of sales, and for
commissions for excess sales, the
employer's letter offering em-
ployment on certain terms, being
simply the act of one party to
the contract, was irrelevant. Id.
3. As to liability of insurance
agent to his principal. See In-
surance. Westchester Fire Ins.
Co. v. Bollin (90 S. E. 327), 106
S. C. 45.
4. A principal may sue his agent,
or an agent his principal, at law,
when the legal remedy is com-
plete and adequate, so that the
mere fact that plaintiffs were
agents of defendant did not im-
part to their mutual accounts
such equitable features as to de-
prive the Court of law of juris-
diction. Gordon-McCabe & Co.
v. Colleton Mercantile & Mfg. Co..
(90 S. E. 161), 106 S. C. 25.
5. Revocation of power of attor-
ney. See Attorneys and Client.
Bunch v. Dunning (91 S. E. 331),
106 S. C. 300.
6. In an action for money alleged
to have been loaned by plaintiff
through her husband to defend-
ant, an advertisement showing
that husband was manager of
defendant's store in 1911 was
competent to be taken with fact
that he was in store in 1910
when loans were made, to prove
that he was manager in 1910.
True v. Cudd (91 S. E. 856),
106 S. C. 478.
PROBATE OF DEEDS.
See Deeds. Dillon v. Oliver (91
S. E. 304), 106 S. C. 410.
1. Judgment in a partition action
was not void as to defendants,
who left the State 20 years be-
fore the death of the owner of
the land, because they were
summoned by publication and
sued in the names by which they
were known when they left the
State, and not by any others ac-
quired by marriage or otherwise.
Gladden v. Chapman (91 S. E.
796), 106 S. C. 486.
PUBLIC SERVICE CORPORA-
TIONS.
See Waters and Watercourses.
Johnson v. Carolina Gas & Elec-
tric Co. (91 S. E. 734), 106 S. C.
447.
1. 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.
2. 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. C. 123.
3. 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.
4. In crossing accident
question whether railroad com-
pany was guilty of negligence in
failing to maintain flagman at
crossing, in view of obstruction
of vision of trainmen and travel-
ers 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.
123.
5. 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.
6. 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.
7. In an action against a railroad
for killing two horses and injur-
ing a buggy and a gun in a
crossing collision, case held for
the jury under the evidence.
White v. A. C. L. R. R. Co. (91
S. E. 323), 106 S. C. 337.
8. In an action for the killing of
plaintiff's colt, a letter by the
superintendent of the defendant
railroad company, that investi-
gation disclosed that the colt ran
into the train after the engine
had passed, is sufficient showing
to carry the case to the jury
on the presumption of negligence
arising from the killing, notwith-
standing the negligence
denied. Ervin v. A. C. L. R. R.
Co. (91 S. E. 317), 106 S. C. 354.
9. 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.
10. 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.
Carolina, C. & O. Ry. of South
Carolina (91 S. E. 380), 106 S. C.
368.
11. Where injured pedestrian,
leaving station, walked diagonal-
ly 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.
12. Railroad can lease a portion of
right of way to shipper for use
as warehouse, in connection with
shipping of cotton seed, where
right of way is used for facili-
tating moving of freight. Shelton
v. Southern Cotton Oil Co. (90
S. E. 751), 106 S. C. 192.
REAL PROPERTY.
1. Title to, raising issue in magis-
trate's Courts. See Magistrates.
Barnes v. C. & W. C. Ry. Co.
(90 S. E. 1017), 106 S. C. 227.
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