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" the money advanced, as a g "judged to constitute a mortp " the grantor was in the beginn " change be shown in his into " he may have made of his re;i " merely as a pledge to secure? Conway vs. Alexander, 7 Cra Had tliere been any treaty?a or a mortgage?the deed inigh sidered as a cover intended to 1 ty from the appearance it assun vcrsation. The parties met an and not of mortgage. 1 Jones Mortg., S -">1: Ufllt'lilll^, uvi'i^ unr uiu,Y " (Ictany right that lie has, In " debtors, who have mortgage " that their necessities often di 44 sions in order to raise money. 44 the security of his property, 1 44 words to preclude himself fro Holmes v. Grant, S, Paige 2 44 But as a gen end rule, when 44 made upon an application for 44 the purpose of preventing usi 44 to be a mortgage, whenever tl 44 tion for the loan is made, agr< 44 vanced, with legal interest, oi " the property, within a speeifii 44 be the form of the written coi 44 real transaction was a loati of Ihivis v. Hopkins, 15 111. 51 44 When a party at a public 44 agreed by parol with a persor 44 who had made improvement 44 and advance the money at 44 took the title in his.own nann IVO.lt* Smith"! v. Sackett, 15 111. -r)2f "When A. and B. had mat " claimants of, public lands, an " land sale, and for that purpo: 44 was refused, but (agreed ar ' took his note therefor, the req 44 invest it for A. and B.'s accc 44 prove satisfactory security, c 44 lands in his own name, and < " ment in two years, of the pur " tioned that A. and B. should " to that amount of the bond, a " take up said note, should wor 44 that such a transaction was n< " loan, and that D. sustained th 44 B., and his lien was only a ir Locke vs. Palmer, 26 Ala., 31: The Palmers, who were partn and executed an absolute co months afterwards, Locke execi recited that "it was agreed betv at the time of the execution of or their assigns, should 011 or bf <&c., then he would reconvey transactions took place in the si mained in possession of Palmer paying no rent or hire for the ssi erty went into the hands of Ijoq was filed in 1852. This Court, a cellor, held that the transaction security, and not a sale of the purchase. There are in most c which enable a Court, with any determine whether a mortgage but the inclination of Equity in against the latter, for the reason the transaction into a mortgage mistake which converted the tr After alluding to the fact that t sion of the property, allowed it hire, the Court proceeded to adc possession of the property remji sistent with the idea of an abso That Equity will enforce the tract made between the parties 1 cept the Home Place for the del This contract was in parol, nf tlionnprfll Cieilt K> lUK.tr it uuu \ia niv . The plaintiff does not deny in folio 29, that he attached to it should renounce her dower, an* Place for $2,000. This latter cc to Holland. Granting, for the sake of art serted, that Mrs. Brownlee si condition is one which Equity 1 that Mrs. Martin acted on som< and Brownlee, and that she g Place, and moved to the River withstanding the non-performa in as advantageous a condition, equity will enforce specific perf The thing most desired by h Place, that he might consumm land. The renunciation of dov tage to him. All the benefits contract were received, name Place, and the sale to Hollanc front, thouch the dower be um the plaintiflf. It might have been expected on the renunciation of Dower 1 tainlv no matter of concern to " When the performee of the " plight essentially the same, o " condition had been perform< O " To sustain an action at lav " must be averred according t " Equity, on the other hand, " notwithstanding the plainti " that the agreement should I " cordingly." The condition that Mrs. Iir< er is at most an independent fendants. " When, from a considerati " clear that the one party re " upon the performance of the " formance is not a condition 2 1 4* Although a man may refi " other party has complied w 14 he has received and accepte " was to be performed in h " changes it.t character and bee " agreement, affording no d( " counter claim for damages.' Id. 1 The'plaintift" has received n< which wan to he performed in whole, and it would be unjust who has received the whole coi should keep it, and perform no that a condition which was to 1 performed. " The law therefore obliges " agreement and leaves him " damages, against the other : " of the condition." Id. 741. To show the absurdity of were left to his action for dai imperfect performance of the c lowed for their failure to proci dower? A failure which redo and thus indirectly to the plaii the plaintiffs right before a cat performance of this condition " Ln general, one who accept 11 an award of damages, must " accept part and reject the " valid." Bigelow Estop. 614. 1 ;eneral rule, the transaction is rage. In such case, the purpos< liny; to borrow money, and unle: ntions, it is presumed that any ;l estate, in connection with it, \ i loan." nch., |2oJ?| : ny conversation respecting a 1( t have been with more reason e i*eil a transaction differing in re ied. But there was no such c id treated upon the ground of > renounce any privurgu, <?r mux ut an exception is made in favoi (1 their property; lor the retus rive them to make ruinous eonc When one borrows money uj: le is not allowed by any form m redeeming." 58: the contract and conveyance; the loan of money, this Court, iry and cxtortiou, will construe he person, to whom the appli ?es to receive hack the money j r a larger amount, and to reconv wl time thereafter, whatever m ltract, if it is apparent that t monev." d: : land sale by the Govern me i in possession of such land, a s thereon, to bid off his clain twenty per cent, per annum, a b, held that such a contract is t: le improvements on, and w< tl desired to enter tlu-m at pub se applied to (\ for a loan, whi id did loan to his brother I)., a [uisite amount, with directions mimodation, if the lands shoi Hid 1). accordingly entered st ^ave a bond for title, upon p; chase money, interest, <fcc., eon pay D.'s note to C. in disehar nd that a failure on their part k a forfeiture of the bond. He at a sale to D. of the land, bui le relation of mortgagee to A. a lortgage on the land." ers, obtained from Locke $3,o04. uveyance of land. About t1 ited to them a defeasance, whi ;een the said Palmers and Loci the conveyance, that if Palini ifore 1 January, repay said sum! to them said property. Tin iring of 1843. The property s for more than two years, th ime, and in June, 1847, the prt ke's executor. The bill to redet .ffirming the decree of the Chi was a loan of money on mortga property with condition to ases of this character, no te thing like positive certainty, or conditional sale was intendi * stinh rnses. is always to le i that an error, which" convert , would not be as injurious as ansaction into a conditional sa he buyer instead of taking pos to remain with the seller withe 1, "all of these and especially t lining with the seller are inc( lute sale." G. specific performance of the c( jy which Brownlee agreed to : l>t. but part performance was su tion of the Statute of Frauds. ; toto, this contract, but alleg the proviso that Mrs. Brown 3 that he should sell the Hoi mdition was performed in the s jument, that the proviso was lould renounce her dower, tl will relieve against. Certain it e contract made between hers< - ~ r TT~. ;ave nun possession m me nu Place?and if the plaintiff, n nee of this condition can he pla< he has no right to complain, a ormance. lim was possession of the Ho: late the proposed trade with H ver by his wife was of no advi to be received by him from 1 ly: the possession of the llo I, and the enforcement of his c enounced cannot possibly inji for the Martins to have insis jy Mrs. Brownlee, but it was c Brownlee. condition cannot be put int( r at least as advantageous as if ed, equity does not interpose. Minor Inst. 261 (2 Ed.) r, performance, as we have se o the very terms of the contn demands no such rigor, and ff's default, it be conscientii >e performed, it will be decreed Id. 78.3. nvnlee should renounce her d< agreement on the part of the on of the whole instrument, n lied upon his remedy, and i condition by the other, such j precedent." ienj. Sales, 738. ise to perform his promise till ith a condition precedent, yet ti a substantial part of that \vh is favor, the condition preen, monies a warranty or indepenc tfence to an action, but givin 11. ">t only "a substantial part of t his favor," but he has received , under such circumstances, thai isidcration for which hi' bargair corresponding duty, on the groi >enefit the other party has not b i ! ? Jo no r*4~ ) mill IU pCiiUllll 1UO |/Ui v \r* to his action or counter claim *ide, for the imperfect performs the plaintiffs position, suppose nages against the other side for :ondition, what sum would he b< ire Mrs. Brownlee's renunciatio unds to Mrs. Brownlee's advanl utifTs. There must be a damag ise of action accrues, while the 1 is a benetit. ts tlie terms of a contract or salt accept the same in foto; lie cat rest or claim that the same ws a(l:| BRO WNIJEE 3 ol j Points and A?tlu>rilic> vas' rln in l>eliall* ! This is a suit for the possessi 5iin | by sotting; up defences both le on-1 1. A general denial. idi- j That the deed under w hi on-j of its execution intended as sale | not as transfer of title. ?>. That the plaintiff agree the Home IMaee for the debt a en- Martin, lor the River Place, w p of1 1. I n the nature of a set off on, j Accord and satisfaction. :es- j The legal issues and eertai ton I Judge Fraser prepared as be of fences, were without objection ted to the jury oil testimony t jury. On all the issues the are Honor then took into consi< for pleadings, testimony and verd it practice in such cases, ca- Adicks vs. Lowry, 12 8. id- Brownlee vs. Martin, 21 'ey And some time after the adj< ay cree finding that the conveyan lie "River Place" to plaintiff by ham was made with the unc Mrs. Martin that the same si nt, the repayment of the purcha nd vancect by plaintiff for the ben ns, "That being a mortgage the s nd execution of a paper called a ec a mitted, without any new consi to. And that upon the surr Place" and occupation by defei Are River Place" there was a valid iiic &c. (Folio 108). eh To this defendant excepts: iui 1. Bceuuse his Honor "the to that the deed of December '5, ild utor, to John E. Brow nice, ami lid at the time to operate as a mor iv- Was the deed so regarded by cii- Mrs. Martin on 3 December, ge containing six hundred and sb? to Place of Joel J. Cunningham, m Id, She had no money with whic t a dependent on her friends to h nd ent on the day of sale. Mr. G< help her. (folio 33, 43 and 53). Mrs. Martin said after the sal 50 and she preferred to make the s lV(J friend (folios 33, 44 and 54). cjj agreement on that day and t] -e Brown lee, Gower and Martin; last mentioned concur in stat 5 ? lend Mrs. Martin the money ai In confirmation of this Mr. Go1 J.e. did not do so for the reason tha ey Martin. What he did do sh( Cothran was instructed to ]?rc such an agreement and did urei m. evidence that Mrs. Martin ma ge borrow the money but abanc re. borrow money in 1879. Mr. Brownlee denies the st \0 their statements are true one < That Mr. Brown lee's memory an' confidence and friendship of M e(j out of the transaction for him , a that which was intended as a n le> ance, the very purpose equity .< es. mony must be read with this c" )Ut Mrs. Martin's and Mrs. Broi he place at meeting 20 December )n. Mrs. Martin's version is more tween the families. The defe was on the 24th December, IS that the title was to be math )n_ loan he was to make. (35 and on. Isav that nothing transpired t agreement, (folio 70). fti_ It is strongly confirmatory, i not intended as Mr. Cothran \ es, from Mrs. Martina written tro lee Mr. and Mrs. Brown lee rep< lie was to take the land at Mr? ale gives as a reason for Mrs. Ms take the land at her bid "that i in. of sale, it would be resold at h< iat had nothing to risk. She had is to risk" by resale, too true! an 3lf to the risk. Mrs. Martin's an: me ble that she would show suel ot- the land at the bid, when M] ;ed cents advance on the River PI,* nd willingness to advance the moi lvir. jl>i u\v iji mo ins me give her two yearsvfroin that ti oi. deem the hind. Agreement v an_ 1879. The agreement to redee the bej, 1877," (folio 20). The dec llie 1877. Mr. lirownlee says subs on. gave to Mrs. Martin the right are 27). Mrs. Brownlee says one It would be very remarkable i ted December, 1877,* not to allow h ;er- if after the lapse of only a wee circumstances on which to bas< ) a to redeem. the The preamble to the exhibit is conclusive evidence of an ajL> fore the execution of titles on en, Brownlee was to re-convey th< iet. paying the amount of the pun ;r fnrfltht?Srd Dct'imiher. 1870. 1 ous of the fact of an agreement, e.> ac. of the deed by Mr. C'othran to intended as a security for the ( Why the recitation of the fat There is no agreement from M \w" sell. Why is the instrument s tlu" is it stated that after default tli . sion lis his own absolute, propel ^ ** tin Wits to repay (folio 17) the | not 10) and she was the purchaser K>r" 31 r. Brown lee was to have the " ty in fee simple forever undi " Cothran aforesaid." the toln Southard vs. liussell, 121 if re-sell and alleges that it is i ich ly intended to manifest a eond lent the Court to watch vigilantly lent should he effectual to aeto npli g a in doubtful cases the Court lea ity was a mortgage and not a \ irave un the written memoran hat ed tlio transaction ;is a mortal the lie had no furtlier interest in it the duin. (103.) led, Mrs. Martin paid Mr. Brow und vance for the first year. (;}0.) eon there Has a subsisting debt on so undoi tood by the parties? the action was a mortgage, for Jones on Mortgages, 2 i nice Mr. Brownlee for nearly t\v deed to liim by Mr. Cothran, 1 2 he loan to Mrs. Martin and the d the statements to his neighbors ai j al- Haddon, (folio 20), of Dr. Hell n of folio 50; of Mr. J. 11. Latime ta#o folios <?1 and 02. c to The agreement of Mr. Hrov ion- the debt and to make title to t confirmation of the view that >, or action a loan and security, fol mot The fact that the conditional is in tin, strengthens the same viev EXCJ The jmrchase by Mrs. Mai \ versus MAJ-tTIN. < Wubmitt.?'<l 1>y Jj. ~W. Pci'ol* IlvsiiondcniH. on of land. The defendant replied gal niul equitable in their character. icli plaintiff claims was at the time a security for a loan of money and [I on the 1 December, 187!), to take nd to make title to defendant, .J. A. hich is the tract in controversy. 11 issues of fact which his Honor ing involved in the equitable deby counsel on either side. Subuiitaken before Judge Fraser and the jury found lor the plaintiff. His ieration the entire case, including ict of the jury as prescribed by the C., 07. 8. C., 402. " r* i l _ !. . xirninenr 01 uourc lie niuu jus uece of the "Home Place" and of the the Executor of Joel J. Cunninglerstanding between plaintilf and lould stand as a mortgage to secure se money advanced and to be adDfitof Mrs. Martin." status could not be changed by the mditional sale, which was, it is adderation moving the parties thereender to plaintiff of the "Home ndant, Josephine A. Martin, of the [ and binding settlement in full," Presiding Judge erred in holding 1877, from J. ?S. Cothran, the Exec1 absolute on its face, was intended ' tgage." the parties ? 1877, bought the two tracts of land ; *" l^oinor thp TTnine ' ?.ij uuc^i v/11u uuvu uviiig va.v. ? 'ith its improvements, for $1,(508.00. 1 :h to comply with her bid, and was elp her. Two of whom were presD\ver liad come from Greenville to He was her brother-in-law. j e that Mr. Brownlee would help her Arrangement with her neighbor and What occurred in coming to an i lie terms of it are known to Messrs. tnd Mrs. Martin only. The three ;ing that Mr. Brownlee agreed to , id to hike a mortgage to secure it. iver came to help Mrs. Martin. He ; 1Mr. Brownlee agreed to help Mrs. )ws his sincerity (o3 and 54). Mr. 'pare the papers in conformity to jare them (.33 and 09). There is no de any effort with any one else to lance of evidence of her efTorts to \ atements of the others in toto. If of two things necessarily follows, has failed him. or that he used the rs. Martin in order to make profit .self, by subsequently claiming that mortgage, to be an absolute conveyitrives to frustrate, and all his testilesign in view. vnlee's testimony as to what took , 1877, is contradictory (47 and 77). in conformity to the friendship bendants both say that the agreement 77, the day the deed was executed, ; to Brownlee as a security for the 45). Mr. Cothran and Mr. Martin o show any change of the original that an absolute transfer of bid was vould in that event have required insfer of her bid. aof (Vn?nmifK' thnf, Mr. Brownlee CUl "WJUV"VV . Martin's bid, and Mrs. Brownlee irtin's anxiety for Mr. Brownlee to jnless she complied with the terms ir risk at the next Salesday and she no money." (folio 72). "Nothing d therefore no cause lor anxiety as dety was for a home. Is it proba1 anxiety for Mr. Brownlee to take r. Clinkscales had offered her fifty ice? And Mr. Gower had shown a iiey for her? ?t direct testimony that "1 was to ime, (from 3 December, 1877,) to rev-as made just before Christmas, m was made just before 24 Decem:d was executed on 24th December, equently in his testimony that he to redeem after Chrtstmas, (folio week after Christmas, (folio H4). f his determination before the 24th er to redeem was so positive, and k he without the occurrence of any i the change, ho should allow her i "A" called a "Conditional Sale," [reement between the parties health December, 1877, that Mr. 3 land to Mrs. Martin upon nor chase money and interest on or beriie whole instrument is evidence listing at the time of the execution Mr. Brownlee, that the deed was lebt. (Folios 14 to IS). ts anterior to 24th December, 1K77 ? rs. Brown lee to Mrs. Martin to stated to bo not a mortgage i Why lat Mr. Brownleemay take possesty in fee simple, Arc. ? Mrs. Marmrehase money with interest (folio (folio 14), and in case of default hind "?us his own absolute proper?r the deed made to him by J. S. low., 11G, there was an agreement x conditional re-sale, and was clear itional sale, that it is the duty of these exercises of skill lest they ish what equity forbids, and that ns to the conclusion that the real -ale. (|>. 1 ">1.) Tho fact that Kusseu (hun docs not show that ho regardgo for he may have thought that from the terms of the memorannlec $50.00, the interest on the'adThis clearly evinces the fact that which interest was clue, and was and goes to show that the trans>73. o years after the execution of the ooked upon the transaction as a eed as a security, as shown by his nd friends?see testimony of Mr. , folic s 50, ")1 and 52; of Mr. Knox, r. folio (50; of Mr. Massalon Bell, nileo to tako the Home Place for lie River Place to her, is further Mr. Brownlee considered the traxisios 28, 2J), 41,10, (>;* and Gl. 1 sale paper was left with Mrs. Mar-; v. (folio 29). EPTION 2. tin of the land. Her application i to the plaintiff for money. Repeated a made tohim. Her plea for two years in diligent efforts to raise the money in plaintiff and are sufficient to point to ; tin's part to retain for her own use th relative and as to which the plaintiff \ EXCEPTION 3 The testimony of Mrs. Martin is to t looked upon the conveyance as a mere Mr. Brownlec's in January, 1S77, (folio 7 which she was to redeem the land confir tin says that Mrs. Martin told him and was willing that Mr. Brown lee should rity, (folios .'11 and 35.) Ho says Mr. Mi Mr. Haddon, (folio 20.) EXCEPTION 4 This Exception is fully covered by tli hree Exceptions. EPCEPTION o, This Exception misstates the basis of reading of the third defence (folio 45) w And besides, if defendant's second defei cient to defeat plaintiff's action. Morec cided the third defence in favor of de lhe second defence is sustained, is to th If there was an inconsistency in the had his relief in a motion to strike out to elect upon which they would rely, motion at the proper time he cannot nc (Johns vs. Frazier, 0, S. C., 350. EXCEPTION 0. The testimony of Mr. Brownlee, (folic Mrs. Martin, (folio 45), of Mr. Knox ( Cunningham (G-l)? all sustain the view o But the exception seems not to be to t of issues 4 and 5 upon the merits of the his reversal was not fully supported by jause these issues were legal, not equita by referring them to the jury certainly wex of fact involved in the consideratio and as issues of fact it is not usual t< equitable; but they are involved in a c ble, as has been held on the former h Brownlee vs. Martin 21 S. C. 402,and u sent back for a new trial. The legal i diet of a jury is conclusive upon the Cii are "presented by the plaintiff's claim.' Smith & Co. v. Bryce, McMahon v. Dawkins The Circuit Judge not only had the r after having heard the verdict of the submitted to them, to go on and render such issues, and in doing so he might ac< sions reached by the jury. Tolbatt & Sons v. SandiJ "The judgment in such a case must b elusions of the judge, "both on the law he 'in forming his conclusions' is not b ii jury, but may wholly disregard it. C. C. & A. R. R. Co. v. Eai That in all cases of appeal from finding Judge confirming the same findings by testimony taken orally before the Judge mitted to him in writing for his original on the appellant to show clear error in the son of an entire absence of evidence to si the manifest weight of testimony in the c Notes by Reporter 12, S. C., 617. This rule is confirmed in the the case of 24|S. C., 595, where the Court adds "the i " there was conflict in the testimony and " rarely if ever interferes." tin xi i? ? 4-UA \v nere me veruici uy u jux^ wu wic isa at a subsequent term, on the report of tl bound by the verdict any more than by t Ivy vs. Clawson, 15, S. C. Where he overrules the master his fii ruled by the Supreme Court. Young vs. Young, S. E. Reporter, j Where the Trial Justice also hears the having seen the witnesses, his finding of where he confirms Master's report. Iteporters Notes, supra. The reference of issues to a jury out of the conscience of the Judge, and he may C., C. &. A. R. R. Co., vs. Earle, su] e. frank waldrop, plainti against The Greenwood, Laurens and Sp. Company, Defendants, R inmimont n f It. GftlM ant's* Attornc; JURISDICTION The Complaint as shown by the cases 1 tion to recover damages alleged to have tiff in consequence of the railroad emban face water back upon the land in his poss The Complaint does not allege that a structed by the embankment, but all th( applicable to the obstruction of surface wt An analysis of the Complaint also sho; ages were only to the land on the upper as appears from the words of the Compls icizecf: " That said railroad runs through " hereinbefore described, and by reason c " said road bed, and by reason of the h " constructed on the land of this plainti " which accumidatex, but which would f " not prevented by the road bed of the d< 14 this plaintiff by overflowing his land, j "growing 011 this land, and by renderinj " vation in the sum of seventy-five dollai " That although frequently requested " said nuisance, and to drain off the wa " plaintiff it has refused to do so, and " amount above stated." In order to give the Court jurisdictioi face of the Complaint that the action is li - -x 1__ i /imiLiiVI not properiy imvu ut'i*u umuu nuu u/nmu of compensation for the right of way ove damages claimed are such as could have ation in assessing compensation for the remedy provided by the statute should srive and deprives the Circuit Court of juri Rev. Statutes, Sec. ioof Verdeer vs. It. It. 15 S. 2 Wood's Railway Lav 1 Red field on R. It. 17(1 Pierce on It. R. 170. The Complaint being an action for alio water in consequence of defendant's em ceed to the consideration of the question ages as may arise from surface water are consideration in assessing compensation 1 In the rase of Walker vs. Oil Co., <i'C., IV Am. Rep. ol2, the following langua " from surface water turned back by the " road, anil made to flow upon petitioi: " from escaping therefrom, in the usual "jury in estimating his damages. W1 " even it would seem a private right or " is the duty of the railroad corporation " ion for it; and their failure to do so su " for tort, but not to damages upon com " such duty exists in regard to surface 1 " bankments, and necessary gutters of t " avoidably modify the flow of surfac " cause damage by keeping it back or pi " tities upon lands adjoining the road. I " causes would seem dearly to fall wi " which have been held to afford groui " damages under the Statute<fcc. See also Taylor vs. Fiekas, 04 Ind. 107 j Lynch vs. Mayor 7(? N. Y. (50, reported ppeals he claims were which to redeem. Her 1879?all testified to by a purpose on Mr/. Mare lands of her deceased vas informed. he effect that she always security. The visit to -1) to settle the time in m this view. Mr. Mar. Mr. Brownlee that she have the titled as secuarlin, (folio ]?>) and of ie remarks in the first the third defence, as a ill readily demonstrate, ice prevails it is sufti)ver, his Honor also defendant?but which, if e advantage of plaintiff, defences the plaintiff or require defendant Not having made his >\v complain. > 29), of Mr. Martin, of folio 58), and of Mrs. tf his Honor. he reversal of his Honor tse issues, that is, that the testimony, but beble issues. His Honor thought they were ?n of the third defense, > term them legal or lefence which is equitaearing of this case of pon which the case was ssues in which the verrcuit Judge are such as 17 S. C. 544. , 22 S. C. 320. ight, but it was his duy jury, upon the issues his own decision, as to jeptor reject the conclu fer MSS, No. 2103. e the result of the conand the facts" and as ound by the verdict of rle, 12 S. G. 55. r; of fact by the Circuit referee deduced from or from evidence subfindings, the burden is i Circuit decree, by realpport it or opposed to ause. Pope vs. Mortgomery, itmostthat can be said in such a case this Court ues is heard by a Judge he trial Judge, he is not he finding by a referee. idings are rarely overage 204. case on the equity side, fact is classed with cases chancery is to enlighten disregard the virdict. ff, Appellant, ^rtanburg railroad espondent. /, one of Defendhereinafter cited is an ac oeen sustained oy piainikment turning the sitression. running stream was ob3 allegations are properly iter. vs that the alleged damside of the embankment lint, which we have italthe land of this plaintiff if the bad construction of XI. ^ ^,.7 txiiycuiwiuy ui nit? unite/I. iff to carry off the water, low off naturally were it ?feijdant, it has damaged ind by injury to the crop <* MtVland unfit for cultirs. by this plaintiff to abate ter from the land of this has damaged him in the 1 it must appear upon the or such damages as could cration in the assessment r the land, because if the neen taKen into consmer! right of way, then the he pursued, as it is excluisdiction. ). . C. m. v, 795. i. dged damages bv surface hankment we next proas to whether such damproperly to he taken into or the right of way. 10,'5 Mass. 10, reported in ge is used : " The injury embankment of the railler's land, or prevented mode was proper for the icre there is a public or easement of drainage, it to make suitable provisbjected them to an action plaint. * * * But 110 water. The cuts and emhe railroad track will 1111 e water, and sometimes qjccting it in large quannjuries to land from such thin the class of effects id for the assessment ol rep. in Am. Rep. 114. in 32 Am. Ttpp .271. \ H ' A railroad company having acquir- ' eel a right of way, and found it necessary to raise its track above the natu^ ral surface of the land is not bound t?K | provide culverts or other means for ihe ^ | passage through the embankment of (surface water or water flowing from a i river and descending from or over the lands of the adjoining owner. Cairo &c. vs Stevens 73. Ind. 278, reported in 48 Am. Rep. 139. O'Connor vs. R. R. Co., 52 Wis. 525, reported in 38 Am. Rep. 753. Barclay vs. Wilcox, 86 N. Y. 140, reported iu 40 Am. Rep. 519. 2 Woods Railay Law, 884. No'e : id. 882. NON-SUIT. The plaintiffs first exception even if the Crouit Judge was in error can not be considered as it was not material to the facts upon which the non-suit was granted. , The plaintiff may offer enough testimony to entitle him to go to the jury, .1 j. l i !_ . J auu yei uy uig aumi&Bion rentier a nonsuit proper. Pool vs. R. R. Co. 23 S. C. 286. "The law governing non-suits is correctly stated by appellant to wit: That a non-suit is proper where there is no evidence pertinent to the material allegations, one or more, of the complaint, &c." Milling vs. Sanders MSS. S. C. The question as to how much was planted within 100 feet of the railroad track was not material to the point as to how the damage was done. The same principle applies to plaintiff's second exception. The declarations of the section master wers not part of the res gestae and no proper foundation was laid for such testimony. Petrievs. R. R.Co.MSS.S. C. The 3rd and 4th exceptions are too general and therefore can not properly he considered, but even if considered we submit they cannot prevailThe burden of proof was on thb plaintiff to show that he had sustained legal damages or such as the law takes notice of; he could only show this by testimony that a water course was obstructed, and failing in this the nonsuit was proper; but he not only failed to show tuat a water course was obstructured, but the admissions in his testimony shows that the alleged damage was done by surface water. Upon the cross-examination of plaintiff, fol. 18, appears the following: "Now, I believe you stated that this was caused by the rain falling waters accumulated there by the over-flowing. Yes. Sir! it was, the rains accumulated by the embankment." But to set the question beyond all doubt his Honor at fol. 29 says: "I am satisfied however, that it appeared in evidence that there was no runniiig stream, and that the damages com* plained of were done by surface water. This was one of the grounds of the motion for non-suit, and was not as a fact called in question by attorneys for the'plaintiff" As it clearly appears both from the admission in plaintiff's testimony and the report of the case by the Presiding Judge that the damage was done by surface water, we will next consider the question as to whether damages done by surface water in consequence of a railroad embankment are recoyerable, or fall under the head of injuries termed damnum absque injuria. The civil law allows damages from surface water to be recovered, but the /Iam ?iAf A a tlia afohita CUIlL/ILVIt lAJblAJ UUCO UUli AO vuw uvmvuw of our State makes the common law of force no damages are recoverable. This is clearJy shown by 2 Woods Railway Law pp 882 and 886, and from all the foregoing cases upon the question of surface water. As the right to build culverts and precipitate surface waterj in a volume , on the land below is incidental to the defendants right of way, and is included in the compensation for the right of way, so, also, an damage by percolation : the greater embraces the less. The plaintiff as lessee of J. B. SamI ole ba3 no right to claim compensa tion. Lewis vs. R. R. Co. llthRicb. 91. Williams vs. Oliver Cheves 188. One law Jesus Christ claimed as his peculiar law, and it was the law of love. What practice among mankind violates this law so grossly as war? Christ salutes his votaries with the happy omen of "Peace." Examine every part of his doctrine and you will find nothing that does not breathe peace; and as he knew that peace could not be preserved unless those objects for which the world contends with the sword were considered as vile and contemptible, he oruered us to . learn of him to be meek and lowly. ; One never knows a man till he has refused him something, and studied the effect of the refusal; one never ' knows himself till he has denied himself. The altar ol sacrifice is the touchstone of character. A great deal of tiilent is lost in the world for the want of a little courage. Every day sends to their graves a i number of obscure men who have 1 only remained obscure because their timidity has prevented them from making a first effort. One of the most evil consequences i of war is, that it tends to render mankind callous to the feelings and sentiments of humanity.?Charles J. Fox. i Youxci Writer: "What do you think of the poetry I turn out, sir?" i Old writer: "Think you serve it just - ^ i - 'i r* r> ; riglit, sir."?uccruit Tree xresa. ' If gilt frames, when new, are covered with a coat of white varnish, all specks can be washed off with water without harm.