STATE v. RALEIGH & A. A. L. R. CO. (Supreme Court of North Carolina. May 24, 1898.) Appeal from superior court, Wake county; Timberlake, Judge. The Raleigh & Augusta Air Line Railroad Company was convicted of unlawful discrimination, and fined $1,000, and it appeals. Affirmed. MacRae & Day and J. B. Batchelor, for appellant. C. A. Cook and W. C. Douglass, for the State.

PER CURIAM. The bill of indictment, the special verdict, and the judgment of the court below, except as to the name of the defendant and the person in whose favor discrimination was made in the transportation of passengers, are the same as were in the case of State v. Railway Co. (at this term of the court) 30 S. E. 133. and for the reasons given in that case the judgment of the court below in this case is affirmed. Affirmed.

McGEE

▼. WARD. (Supreme Court of South Carolina. June 4, 1898.) Appeal from common pleas circuit court of Greenville county; 0. W. Buchanan, Judge. Action by B. M. McGee against Sarah A. Ward. Judgment for plaintiff, and defendant appeals. The appeal was dismissed by the clerk under rules 1 (19 S. E. v.) and 2. Motion to reinstate denied. The facts are as follows: Judgment of foreclosure was signed December 1, 1897. Notice of appeal was duly served, and the proposed case was served December 28, 1897. Respondent submitted certain amendments to "case," which, not being accepted by appellant, were referred to the circuit judge for settlement. Order settling "case" is dated January 21, 1898, was filed January 25, 1898, and on back is this indorsement: "Rec'd March 1st, 1898. B. B." On February 22, 1898, the respondent served notice that he would move clerk of supreme court to dismiss appeal on March 4th, unless return were filed in that time. No return being filed, on the 4th the appeal was dismissed by the clerk, under rules 1 and 2. The appellant moved to reinstate, because she was under the impression that the amendments allowed by order settling the "case" should be incorporated in the return, and did not have time to complete the return from March 1st to March 4th. She states that the return was brought to the clerk's office on March 5th, but, upon learning that appeal was dismissed, she retained it until March 18th, when it was filed. Absolem Blythe, for appellant. Shuman & Dean, for respondent.

McIVER, C. J. On hearing the motion of the appellant herein to reinstate her appeal, dismissed by the clerk of this court under rules 1 and 2 thereof, after argument of counsel for appellant and respondent, it is ordered that said motion be, and the same is hereby, refused.

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PUTNEY et al. v. McDOW et al. (Supreme Court of South Carolina. May 25, 1898.) tion by Stephen Putney & Co. and others against Thomas F. McDow, as assignee, and others. There was an appeal by certain defendants, which was dismissed by the clerk of the supreme court under rules 1 (19 S. E. v.) and 2, and the appellants moved to reinstate the appeal. Motion granted. See 30 S. E. 605. Stephen Putney & Co. and other judgment creditors of A. Y. Cartwright & Co. brought an action against the assignee of A. Y. Cartwright & Co. and others to set aside a deed of assignment and certain conveyances of realty, as being fraud upon the plaintiff creditors, and for the appointment of a receiver. On August 28, 1895, Judge Benet filed an order holding the complaint to be a creditors' bill, setting aside the deed of assignment, holding the conveyance of real estate void, and ordering the clerk of the court to call in by advertisement all the creditors of the insolvent defendant firm who were willing to come in and contribute to the expenses of the litigation. On January 14, 1896, Judge Townsend filed a decree, in which, among other things, he ordered "that all necessary disbursements made and incurred by the original plaintiffs in the complaint in this action, including their traveling expenses in prosecuting the action to judgment, or, more properly speaking, until the rendition of the decree of Judge Benet on August 28, 1895, should be refunded to them before the fund coming into the hands of the receiver shall be ratably applied to the claims, complying with all the provisions of Judge Benet's decree." It seems that no notice of the filing of this order was served by either party, and on the 6th of June, 1896, the attorneys for assignors and certain creditors who came in under the call under Judge Benet's decree served notice of the filing of Judge Townsend's order, and on same day served notice of intention to appeal from such order, and exceptions to that portion above quoted. This notice and exceptions were immediately returned by respondents' attorneys, with the indorsement that the assignee, pursuant to said order, had accounted to the receiver, and that the receiver had paid to the original plaintiffs their necessary disbursements and traveling expenses, and that the assignee was the attorney of all parties defendant appellant. On July 1, 1896, Judge Ernest Gary signed an order confirming the report of the clerk on claims filed June 23, 1896, and ordering the receiver to pay out the funds. On July 31, 1896, the proposed "case" with exceptions was served, but at once returned by respondents' attorneys. On October 3, 1896, the appeal was dismissed by the clerk of this court upon affidavits of respondents' attorneys that the "return" had not been filed in time. C. E. Spencer and Thos. F. McDow, for the motion. Wm. B. McCaw and Hart & Hart, opposed.

McIVER, C. J. This is a motion to reinstate an appeal dismissed by the clerk under rules 1 and 2. From an examination of the motion papers, and upon due consideration of the argument of counsel, we are satisfied that notice of intention to appeal was given in good faith, within the time prescribed by law, and upon the showing made we are of opinion that the appeal should be reinstated. It is therefore ordered that the appeal be reinstated, and that the case be docketed for hearing at the next term of this court.

O. Purdy, and Le Roy F. Youmans, for respondents.

McIVER, C. J. The circuit judges having been called to the assistance of the supreme court for the purpose of determining what issues of fact presented by the pleadings should be referred to a referee for his determination, and having this day appeared in response to the call of the chief justice, the court, as thus constituted, proceeded to the hearing of the matter thus referred to it. After hearing the argument of counsel, and after full conference, the majority of the court, as thus constituted, reached the conclusion that the only issues of fact which should be referred to the referee are the following, viz.: (1) Whether the board of commissioners of election for Darlington county certified the result of the election held in those portions of said county proposed to be cut off for the purpose of forming the proposed new county of Lee, under the order of his excellency, the governor, in tabulated statement of the vote at each precinct, and transmitted the same to the secretary of state. (2) If so, whether it appears from such statement that two-thirds of those voting at such election were in favor of the establishment of Lee county. The reasons for this conclusion will be stated in an opinion which will hereafter be prepared and filed.

Appointment of Referee.

The court composed of the four justices of the supreme court and seven of the circuit judges, organized under the provisions of section 12 of article 5 of the constitution, for the purpose of determining what issues of fact presented by the pleadings should be referred to a referee for his determination, assembled this day in the supreme court room at Columbia. A majority of the court, as thus constituted, having reached the conclusion, expressed in an order of this date, that the only issues of fact necessary to be referred to a referee were (1) whether the board of commissioners of elections for Darlington county certified the result of the election held in those portions of said county proposed to be cut off for the purpose of forming the proposed new county of Lee, under the order of his excellency, the governor, in tabulated statement of the vote at each precinct, and transmitted the same to the secretary of state, and. (2) if so, whether it appears from such statement that two-thirds of those voting at such election were in favor of the establishment of Lee county. In accordance with this conclusion, it is ordered that Joseph F. Rhame, Esq., be, and he is hereby, appointed referee to hear and determine the issues of fact above stated, and that he do report his findings to the supreme court on or before the first day of the next term of said court.

STATE v. GREEN. (Supreme Court of South Carolina. July 7, 1898.) Appeal from general sessions circuit court of Georgetown county; D. A. Townsend, Judge. Zachariah D. Green was convicted of investing money belonging to an estate of which he had charge as public guardian, without authority, and he appeals. Reversed. J. Jenkins Hucks and Lee & Moise, for appellant. John S. Wilson, for the State.

GARY, A. J. The appellant was tried and convicted upon an indictment of which the following is a copy, to wit: "The State of South Carolina, County of Georgetown. At a court of general sessions begun and holden in and for the county of Georgetown, in the state of South Carolina, at Georgetown court house in the county and state aforesaid, on the second Monday of February in the year of our Lord one thousand eight hundred and ninety-four, with force and arms, at Georgetown, in the county and state aforesaid, being the judge of probate of said county, and by virtue of said

office being the public guardian, and having in his charge, as such officer and guardian, a certain estate, to wit, the estate of W. F. Elliott. and having funds belonging to said estate, did then and there loan of said estate's funds, as an investment, seven hundred dollars to one Samuel J. Lee, now deceased, without said investment being made under the direction and with the approval of any presiding judge, or of the judge of the Third judicial circuit, which said circuit is one in which the said judge of probate resides, and without being upon a petition and proof that said investment was a safe and proper one, against the form of the statutes in such case made and provided, and against the peace and dignity of the said state. John S. Wilson, Solicitor.' Upon the reading of the indictment, the defendant's attorneys demurred to the same, and moved to quash it, upon grounds similar to those set out in the case of State v. Green (which has just been filed) 30 S. E. 683. The indictment charges simply a failure or neglect of duty, and must be regard ed as framed under section 308 of the Criminal Code. The case of State v. Green, 30 S. E. 683 (just filed) is conclusive of the questions raised in this case. It is therefore the judgment of this court that the judgment of the circuit court be reversed, and that the case be remanded to that court, with directions to quash the indictment. McIVER, C. J., concurs in result.

STATE ex rel. EDWARDS et al. T. CROUCH. (Supreme Court of South Carolina. June 1, 1898.) Proceeding on the relation of J. W. Edwards and others against B. W. Crouch to vacate the office of respondent as clerk of the court. Heard on the original petition and order of Gary, J., authorizing the institution of the proceeding. Respondent ruled to show cause.

McIVER, C. J. This is a proceeding to vacate the office of B. W. Crouch as clerk of the common pleas and general sessions for Saluda county upon grounds set forth in the petition. Upon hearing the verified petition and the or der of his honor, Judge Eruest Gary, authorizing the institution of this proceeding, it is ordered that a rule do issue requiring the said B. W. Crouch to show cause before this court on Monday next, the 6th instant, why his of fice as clerk, as aforesaid, should not be vacated. Let a copy of the petition and of this order be forthwith served on the said B. W. Crouch.

STATE ex rel. LOCKWOOD v. ADAMS. County Treasurer. (Supreme Court of South Carolina. June 30, 1898.) Appeal from common pleas circuit court of Beaufort county: L D. Witherspoon, Judge. Mandamus proceeding by the state, on the relation of W. H. Lockwood, against H. Q. Adams, treasurer of Beanfort county. From an order denying the prayer of the petition, and for a dismissal thereof, pe titioner appeals. An additional finding of fact ordered. Elliott & Elliott, for appellant. Thos. Talbird, for respondent.

POPE, J. A petition for the writ of mandamus came on to be heard before Judge Witherspoon. The hearing was had upon the petition, the return, traverse of certain allegations of fact in the return, and other papers. An or der was passed by Judge Witherspoon denying the prayer of the petition, and for a dismissal thereof. From this order an appeal was taken to this court upon sundry grounds. After a careful consideration of these grounds of ap peal, this court finds that the court below failed to pass upon a question of fact, that will be necessary before any judgment can be rendered by us. The pertinency of this question, as well as the question itself. will appear from this statement: In the year 1893 the county of

Beaufort was visited by a cyclone of unusual fury, whose ill effects were so general that the general assembly of the state, at its next session thereafter, passed an act by which the county commissioner of Beaufort was authorized and required to prepare bonds to the amount of $20,000, and, after the same were duly issued and authenticated by said board, said bonds were directed to be placed in the hands of the county treasurer of said Beaufort county, to be sold by him at not less than par, and the proceeds arising from such said sale should be applied by said county treasurer to the ordinary county and school claims for the fiscal year ending November 1, 1893. 21 St. at Large, p. 556, § 1. The bonds were duly issued, but up to May, 1894, only $7,300 of the same were sold, and the grand jury for Beaufort county, in May, 1894, recommended, in their report to the court of general sessions for Beaufort county, that the remaining $12,700 of said bonds should be placed in the hands of some banker to be negotiated. That the court ordered that the said recommendation should be referred to the board of county commissioners. That thereafter the petitioner was employed by said board to sell said bonds, and agreed that his compensation for such services should be 5 per cent. on the sale made. That said bonds were sold at par, and the proceeds, $12,700, paid over to the county treasurer, Mr. B. B. Sams, and the name of W. H. Lockwood was entered in his books as the purchaser of said bonds. On the 8th of August, 1894, the county commissioners drew their order on said treasurer in favor of W. H. Lockwood for the sum of $635, for his services in negotiating a sale of said bonds, but said treasurer refused to pay the same, and that 42 days thereafter the said board of county commissioners passed an order canceling their order to the treasurer to pay the petitioner the $635, or any part thereof. The main ground for this refusal to pay the petitioner arises from the contention that, by the terms of the act of the general assembly, already cited herein, the bonds were ordered to be sold at par, and, if this claim of petitioner was allowed, it would appear that the bonds were actually sold at 95 cents on the dollar. All this would be quite true if W. H. Lockwood was the actual purchaser of the bonds. While his name appears on the books of the treasurer as the purchaser, it may be only true that such was only an appearance, and not a reality, for he may have negotiated a sale of such bonds with persons residing in New York or elsewhere, and, for convenience to such persons residing away from Beaufort county, the name of W. H. Lockwood may have been entered by the treasurer on his books as such purchaser, while in fact other persons may have been the actual purchasers. Hence this court has concluded to send down to the circuit court this issue for trial, to wit, "Was W. H. Lockwood the actual purchaser of the $12,700 of bonds of Beaufort county, or were said bonds sold to a person or persons other than W. H. Lockwood, at the time said bonds were turned over to said Lockwood by B. B. Sams, as county treasurer, in the year 1894?" Let said court

certify to this court the finding upon said issue so ordered by us, and also let this appeal still remain in this court.

HOWELL et al. v. BOUDAR. (Supreme Court of Appeals of Virginia. June 9, 1898.) Appeal from chancery court of Richmond. Bill by Howell, Son & Co. against H. C. Boudar, trustee. From a judgment in favor of the defendant, plaintiffs appeal. Affirmed. Wyndham R. Meredith, for appellants. Christian & Christian and Leake & Carter, for appellee.

RIELY, J. The same questions, and none others, are presented in this case that were presented in the case of Arbuckle v. Gates, 30 S. E. 496. The agreement in this case contains all the elements of a sale that were pointed out in that case, with the additional feature that the provisions whose effect constitutes the transaction a sale, and not an agency, are here more explicitly and strongly stated. It starts out, as in the other case, by appointing Gates & Brown as agents of Howell, Son & Co. to sell sugar, which the latter would consign to them, the title whereof, however, to remain in them subject to advances made and necessary expenses incurred by Gates & Brown, and then stipulates that Gates & Brown are to advance to Howell, Son & Co., within 30 days, the amount of the invoice, less 1 per cent. trade discount on 100-barrel lots, and an additional 1 per cent. of payment be made within 7 days, "this advance to be without recourse to, or reclamation upon, us, and to be due in any event." It next stipulates that Gates & Brown shall, when they sell the sugar, bill it in their own names, and shall, at their own cost, and without reclamation upon Howell, Son & Co., pay all expenses, and assume all risks of the property and of payment. The sugar was not to be sold for less than the daily quotations with freight added from refining point to point of sale, nor on more liberal terms as to credit or cash discounts. It was then further stipulated that, if Gates & Brown observed these conditions, Howell, Son & Co., upon a certificate to that effect, would pay them a commission of three-sixteenths of a cent per pound, and that Gates & Brown, in addition thereto, should retain the profit over the advance made by them, but, if they failed to comply with any of the conditions, Howell, Son & Co. would decline to pay the commission. No account of sales was required to be rendered or kept. No provision was made for the return of any sugar in any event. It was to be paid for at a fixed time, whether the sugar had been sold or not, or the proceeds of sale collected or not, and all recourse or reclamation for money advanced in payment of the sugar or of expenses was expressly stipulated against. If the provisions of the agreement under construction did not constitute the transaction a sale, it would be difficult to imagine what would be necessary to do So. For a discussion of their character and effect, reference is made to the opinion this day delivered in the case of Arbuckle v. Gates, 30 S. E. 496. The decree appealed from must be affirmed.

ABANDONMENT.

See "Appeal and Error," § 9; "Homestead," § 2.

ABATEMENT.

Pleas in abatement, see "Pleading," § 2.

ABATEMENT AND REVIVAL.

Judgment as bar to another action, see "Judg-
ment," § 7.

Pleas in abatement, see "Pleading," § 2.
Revivor in equity, see "Equity," § 3.

Where affidavit of illegality is filed on levy
of execution in favor of surviving partner,
where it appears that surviving partner was
dead at time of levy, held error to make the
heirs of each member parties plaintiff.-Juhan
v. Juhan (Ga.) 779.

Action on a note given in renewal of one for
price of land sold in partition held not to abate
on the ground that plaintiff's remedy was by
motion in original proceedings.-Holmes v. Da-
vis (N. C.) 334.

ACCIDENT.

Accident insurance, see "Insurance," § 5.

ACCOMMODATION PAPER.

See "Bills and Notes."

ACCORD AND SATISFACTION.

See "Compromise and Settlement"; "Payment."

ACTION.

Bar by former adjudication, see "Judgment,"
§ 7.

Concealment of cause of action, see "Limita-
tion of Actions," § 2.

Jurisdiction of courts, see "Courts."
Laches, see "Equity," § 2.

Limitation by statute, see "Limitation of Ac-
tions."

Malicious actions, see "Malicious Prosecution."
Set-off, see "Set-Off and Counterclaim."

Particular causes or grounds of action.

Price of land, see "Vendor and Purchaser," §
6.

Recovery of land sold by vendor, see "Vendor
and Purchaser," § 6.

Rent, see "Landlord and Tenant," § 5.
Services, see "Master and Servant," § 1.

Particular forms of action.

See "Ejectment"; "Trespass."
Particular forms of special relief.

See "Creditors' Suit"; "Divorce"; "Injunc-
tion"; "Specific Performance."

Establishment and enforcement of right of
homestead, see "Homestead," § 3.
Foreclosure of mortgage, see "Mortgages,"
§ 5.

Setting aside fraudulent conveyance,
"Fraudulent Conveyances," § 2.
Particular proceedings in actions.

see

See "Costs"; "Depositions"; "Dismissal and
Nonsuit"; "Execution"; "Judgment";
"Jury"; "Parties."

Nonsuit, see "Trial," § 5.
Verdict, see "Trial," § 8.

Particular remedies in or incident to actions.
See "Attachment"; "Garnishment"; "Injunc-
tion."

Proceedings in exercise of special or limited
jurisdiction.

Courts of limited jurisdiction in general, see
"Courts."

Suits in equity, see "Equity."

Review of proceedings.

Particular causes or grounds of action.

See "Insurance," 88 9, 10; "Negligence";
"Trespass."

Breach of contract, see "Vendor and Pur-
chaser," § 7.

Criminal conversation, see "Husband and
Wife," § 5.

Foreign judgment, see "Judgment," § 11.
Personal injuries, see "Carriers." § 4; "Rail-
roads," § 5.

30 S.E.-64

ADJUDICATION.

Operation and effect of former adjudication, see
"Judgment," §§ 7, 8.

ADMINISTRATION OF ESTATES.

See "Executors and Administrators."