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White v. North Georgia Electric Co. (Ga.) ; White v. State (Ga., App.). . . . . . . . . . . . . . GSG Whitfield v. State (Ga. App.). . . . . . ... ... 385

Whitley Grocery Co. v. Jones (Ga.). . . . . . 623
Whitlock v. Auburn Lumber Co. (N. C.)... 909
Widincamp v. James (Ga.). . . . . . . . . . . . . . 83
wo County, Robinson-Humphrey Co. v.
38.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Wilkes, Morris Storage & Transfer Co. v.
(Ga. App.). . . . . . . . . . . . . . . . . . . . . . . . . . . 232
Williams v. Fain & Stamps (Ga. App.). ... 307
Williams v. McFadyen's Adm'r (N. C.). ... 1005
Williams v. Mutual Reserve Fund Life
Ass'n (N. C.) . . . . . - - - - - - - - - - - - - - - - - -
Williams v. State (Ga. App.). . . . . . . . . . . . . 549
Williams v. State (Ga. App.). . . . . . . . . ... 1071

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FEHEARINGS TXENIED.

[Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.]

United States Blowpipe Co. v.

Spencer (W. Va.) 56 S. E. 345.

See End of Index for Tables of Southeastern Cases in State Reports. f

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THE

SOUTHEASTERN REPORTER, VOLUME 58.

CRAFTON v. PATRICK. (Supreme Court of South Carolina. July 25, 1907.)

CHAITEL MORTGAGEs—ENFORCEMENT—ESTOPPEL.

After condition broken, the mortgagee is not tstopped to enforce his mortgage on a horse against one who had traded for the horse from one other than the mortgagee, without notice of the mortgage, because he had seen the horse in possession of such other and heard the horse had been traded several times and had taken no steps to give notice of his mortgage other than to record it.

(Ed. Note—For cases in point, see Cent. Dig. Vol. 9, Chattel Mortgages, § 525.]

Appeal from Common Pleas Circuit Court of Fairfield County; Prince, Judge.

Action by Henry C. Crafton against S. R. Patrick. Judgment for plaintiff, and defendant appeals. Affirmed.

J. E. McDonald, for appellant. W. D. Douglass, for respondent.

GARY, A. J. The complaint alleges that on the 15th of April, 1907, R. J. Cunninghim executed and delivered to the plaintiff a mortgage on the horse in dispute, to seture payment of a note given that day in the sum of $88, and payable on the 1st of 0-tober thereafter; that the mortgage was duly indexed and entered of record; that the mortgage has not been satisfied; that the defendant thereafter took possession of the horse and wrongfully refused to deliver him to the plaintiff. The defendant *lied the allegations of the complaint, ex“pt the execution and record of the note and mortgage, and set up the following de*: That, subsequent to the execution of the plaintiff's mortgage, the mortgagor, Cunningham, sold and traded the horse in "testion to one W. B. Dixon, who retained Possession thereof as his own property for out Or two years; that thereafter Dixon traded the horse to one Daniel Hall, or Leland Hall, who had possession thereof of one or two years; that thereafter the o Daniel Hall, or Leland Hall, traded the *id horse to one Rogers, who held said * for a considerable time, exercising "rights over the same; and that there. * the said Rogers, for value received, 38S.E.-1

sold or traded the said horse to the defendant. It is further alleged that the plaintiff, Crafton, lived in the same community with Dixon, Hall, and Rogers, and frequently saw the horse in possession of the said parties, and that he permitted the parties to hold themselves out to the world as the owners of the horse, without objection on his part, and without asserting any right of ownership thereto before the same was sold to the defendant. By reason of these facts, the defendant alleged that the plaintiff was estopped from asserting any title to the said horse. It was further alleged that the defendant purchased said horse from Rogers, who was in possession thereof, and paid the full value of the same, without any notice of plaintiff's claim. The jury rendered a verdict in favor of the plaintiff for the horse, or, in case a delivery could not be had, then for $135, the value thereof. The defendant appealed upon exceptions which will be set out in the report of the case. Briefly stated, the question presented by the exceptions is whether there was error on the part of uis honor, the presiding judge, in ruling that the mere fact the plaintiff saw other persons in possession of the horse, and heard that they were trading it, did not impose upon him the duty of giving any further notice than that furnished by the record, unless he was present when the transactions were taking place with regard to the horse. Section 3007 of the Civil Code of 1902 is as follows: “No voluntary postponement by the mortgagee to seize the per. sonal property covered by any chattel mort. gage, or bill of sale used as a chattel mortgage, after condition broken and no acceptance of a part of the debt secured by the mortgage, or such bill of sale after condition broken, shall be construed to operate as discharging the mortgage, or bill of sale, or as reverting the title of the chattel or chattels in the mortgagor; but indulgence may be granted by such mortgagee to such mortgagor after condition broken, as on other securities, without prejudice or danger to any rights or remedies of the mortgagee in the premises, to collect or to seize the chattels at any time at his option.” This section is remedial in its nature, and must be

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liberally construed, and its provisions are sufficiently comprehensive to be applicable to the present case. But, apart from the statute, the ruling was free from error. The general doctrine is thus clearly stated in 11 Enc. of Law, 427–429: “As a general rule, an estoppel may arise from silence as well as words; but this is only where there is a duty to speak, and the party upon whom the duty rests has an opportunity to speak, and, knowing the circumstances requiring him to speak, keeps silent, or, in other words, where his silence amounts to a fraud, actual or constructive. This doctrine proceeds upon the ground that he who has been silent as to his alleged rights when he ought, in good faith, to have spoken, shall not be heard to speak when he ought to be silent. It is not necessary that the duty to speak in such case should arise out of any agreement, or rest upon any legal obligation in the ordinary sense. It arises whenever the principles of natural justice require the disclosure. It may be stated as a general rule that, if a person having a right, and seeing another person about to commit, or in the course of committing, an act infringing upon that right, stands by in such a manner as really to induce the person committing the act, and who might otherwise have abstained from it, to believe that he consents to its being committed, he cannot afterwards be heard to complain of the act. This, it has been said, is the proper sense of the term “acquiescence,” which in that sense may be defined as ‘quiescence' under such circumstances as that assent may be reasonably inferred from, and is no more than an instance of the law of estoppel by words or conduct. Thus, it has been held that, if the owner of the goods stands by and voluntarily allows another to treat them as his own, by which means a third person is induced to purchase them bona fide, the former cannot recover them from the purchaser.” After the plaintiff placed his mortgage on record, he did not owe any further duty to persons having dealings concerning the horse, other than not to mislead them by his conduct. He did not owe them the duty of giving them that information which the record of time mortgage disclosed, and the testimony does not show that he failed, in any other duty. It is the judgment of this court that the

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Out proof of service on the parent, or without any showing in the proof of service as to absence of the father from the state, raises a presumption of jurisdiction of the minor which cannot be brought in question collaterally. [Ed. Note.—For cases in point, see Cent. Dig. vol. 30, Judgment, $$ 933, 936.] Appeal from Common Pleas Circuit Court of Richland County; Memminger, Judge. Action by Felicita Rosetta Kaylor and others against Louis Paul Hiller. Judgment for defendant, and plaintiffs appeal. Affirmed.

De Pass & De Pass and Bellinger & Welch, for appellants. W. S. Monteith and Lyles & Macmahan, for respondent.

GARY, A. J. This is an action to recover the possession of certain lands described in the complaint. Lewis H. Trevett died in 1878, leaving a will, whereby he devised his whole estate to his wife during the term of her natural life, and after her death then to be divided into four equal parts, one-fourth of which was settled in trust upon each of his granddaughters, Felicita Embleton and Josephine Embleton. After Trevett's death an action was instituted by Louis Paul Hiller, the executor of the will, seeking to marshall the assets and to sell the real estate to pay debts, alleging that the estate was insolvent. To this action both Felicita and Josephine Embleton were made parties. They were then minors under 14 years of age. Their mother was dead, but there was testimony that their father then lived in the city of Columbia. The return of service on the summons was as follows:

“Personally came John McCabe, who, be: ing duly sworn, sayeth on oath that he served Louis H. Embleton, George W. Embleton, Felicita Rosetta Embleton and Josephine Embleton, Martha Hiller and Mary Trevett each with copies of this summons personally, and left the same with them. “John McCabe. “Sworn to and subscribed before me, July 10, 1878. “[L. S.] W. S. Monteith, “Notary Public.”

On the 6th of July, 1878, a petition was filed for the appointment of a guardian ad litem for said infants, in which it was stated that they had no general or testamentary guard. ian, and that they resided with L. P. Hiller, the plaintiff in that action. The present action was commenced in May, 1904, 26 years after the land described in the complaint was sold by order of the court.

After quoting authorities in support of his ruling, his honor, the presiding judge, thus stated his reasons for directing the jury to render a verdict in favor of the defendant: “This is not a direct action to try to set aside the decree on the ground of fraud or irregularity in the decree, but it is for the possession of real estate in which these parties seek to establish title to real estate as not being bound by this decree, as not having bound the parties to the action by reason of alleged irregularity, appearing on the face of the record. Now, in this case it appears in the record that the service was complete; that is, complete and proper service, such as is recognized by the court as proper service, was made. The only question upon which that service is sought to to be shown to be improper is that the absence from the state of South Carolina of the father does not affirmatively appear on the record. The record is silent on the point whether the father was in the state or not. As a complete service is shown in the absence of the father from the state, and the record being silent upon the point whether he was absent or not, and the Other facts stated throughout the record tending to show that the father must have been absent from the state, I think the law will come in and presume that the father was absent from the state, and that the service was Complete. It seems to me from these circumstances and the record before me that complete service on these minors is shown, that they were proper parties to the action, that they were represented before the court, that the case was carried through the usual course before the master, who reported upon it, and a decree rendered, and they are barred from recovery in this action; therefore, there is nothing to submit to the jury. The foreman will come forward and write the verdict, “We find for the defendant the land in dispute.’” The record shows that a copy of the summ0ns was served upon each of the said infants; that they had no general or testamentary guardians, and resided with L. P. Hiller; and that he was the plaintiff in that Action. As he was the plaintiff, and the infants resided with him, it was not necessary to serve a copy of the summons on him. Kenmedy v. Williams, 59 S. C. 378, 38 S. E. S. If st appeared from the record that the infants did not have a father or mother, or that neither was in the state, there would have been * Complete compliance with the requirements of the section of the Code regulating the mode of service on infants as it stood in 1878, which is identical with section 155, subd. 2, of the present Code of 1902, which is as follows: “If against a minor under the age of fourteen years, to such minor personally, and also to his father, mother or guardian, or if there be none within the state, then to any Person having the care and control of such minor, or with whom he shall reside, or in whose service he shall be employed.” But in this case the record is silent as to the alleged jurisdictional defect upon which the appellants rely. In Ex parte Gray, 48 S. C. 566, 569, 26 S. * 78, the court says: “All presumptions must be indulged in favor of the jurisdiction of a court of general jurisdiction. To avoid outh a judgment for want of jurisdiction, the !"risdictional defects must appear affirmatively on the record.” The rule is thus stated

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in 1 Greenleaf on Ev. § 19. “Conclusive presumptions are also made in favor of judicial proceedings. Thus, the records of a court of justice are presumed to have been correctly made, a party to the record is presumed to have been interested in the suit, and after verdict it will be presumed that those facts, without proof of which the verdict could not have been found, were proved, though they are not expressly and distinctly alleged in the record, provided it contains terms sufficiently general to comprehend them in fair and reasonable intendment.” In the case of Clemson College v. Pickens, 42 S.C. 511, 518, 20 S. E. 401, 404, Mr. Chief Justice McIver says: “The practical inquiry is whether the record as set forth in the ‘case' shows on its face that the court did not acquire jurisdiction of the person of defendant, and not whether such record is defective in showing that all of the steps necessary to acquire jurisdiction had been taken.” The court, In the case of Galpin v. Page, 18 Wall. (U. S.) 350, 21 L. Ed. 959, says: “The presumptions which the law requires in support of the judgment of superior courts of general jurisdiction only arise with respect to jurisdictional facts, concerning which the record is silent. Presumptions are only indulged to supply the absence of evidence respecting the facts presumed.” The following language is used in the case of Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742: “Undoubtedly, if the record was silent as to what was done in respect to some material matter, we will presume that what ought to have been done was done. If there is no proof of what was done in obtaining service in the record, we will presume that legal service was in fact made.” The foregoing language from the last two cases was quoted with approval in the case of Rice v. Bamberg, 59 S. C. 498, 38 S. E. 209. The presumption is that those facts existed, without which the court could not have rendered judgment. Therefore the jurisdictional defect relied upon by the appellants, to wit, that it does not appear upon the face of the record that the father was absent from the state, cannot be sustained. When it does not so appear, it cannot be brought in question collaterally, but the party relying upon the defect must have recourse to a direct proceeding. Sanders v. Price, 56 S. C. 1, 33 S. E. 731. It is the judgment of this court that the judgment of the circuit court be affirmed.

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MARTIN v. SOUTHERN RY, CO. Supreme Court of Sonth Carolina. (Sup 1907.) a. July 13,

1. CARRIERs—INJURY TO PASSENGERs—WANTONNESS. In an action for injuries to a passenger, where the evidence showed that the conductor promised a young girl that he would assist her when her station was called, that at her station her father asked the conductor if any passen

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3. SAME–Evi DENCE—QUESTIONS For JURY. Where a carrier fails to stop its train at the usual stopping place for passengers, it should suppose that a passenger would attempt to alight from the moving train if he could do so prudently; and, when a stranger assists the passenger in so doing and the latter is injured, it is for the jury to determine whether the negligence of the company or that of the assisting person was the proximate cause of the resulting injury. 4. SAME-NEGLIGENCE. Failure to stop a passenger train at the usual place for letting off passengers is prima facie negligence. Appeal from Common Pleas Circuit Court of Fairfield County; Klugh, Judge. Action by Elizabeth B. Martin, by guardian, against the Southern Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

J. E. McDonald, for appellant. Buchanan & Hanahan, for respondent.

POPE, C. J. Elizabeth B. Martin, by her guardian ad litem, Milo B. Martin, brought this action to recover damages of the defendant railway company for personal injuries alleged to have been caused by the negligent, reckless, and wanton conduct of the defendant in failing to stop its train at the usual stopping place at Dawkins, a station in Fairfield county, and put her off. The facts are as follows: On December 2, 1904, plaintiff, a girl of 13 years of age, being in Spartanburg attending school and wishing to go home for the holidays, purchased a ticket for Dawkins, her home, and boarded defendant's train. As the conductor was taking her ticket she requested him to help her off at her destination. He instructed her to keep her seat until the station was called, and promised then to see her off. When the train reached Dawkins it went into a side track to allow the up train to pass. It then came back on the main line, and, according to plaintiff's testimony, stopped some distance above the regular stopping place. Here one or two passengers alighted, and as many got on. Plaintiff, thinking the train would stop at the regular place, kept her seat. Her father, who was at the station to meet her, asked the

conductor if there were any passengers for that place, and on being motioned to the car nearby which the conductor was standing he boarded it. On failing to find his daughter, according to his testimony, he again asked the conductor if there were any passengers for Dawkins, and he responded that he did not know. Soon after the train began to move away, and plaintiff, who was in an extra car behind the one her father had entered, seeing her father and recognizing that the train was not going to stop again, jumped or was pushed off and injured. The defendant denied that it was negligent, and for a defense alleged contributory negligence on the part of the plaintiff. The case was tried at the March, 1906, term of court for Fairfield county, and resulted in a verdict of $1,000 for the plaintiff. Judge J. C. Klugh, the presiding judge, having refused a motion for a new trial, the defendant appealed. 1. The first exception alleges error on the part of the circuit judge in refusing to charge the jury that there was no evidence in the case tending to show wantonness, willfulness, or recklessness on the part of the defendant. Could such a charge have been made? The testimony was uncontradicted that the plaintiff asked the conductor to help her to alight from the train at Dawkins. He admitted himself that he told her to keep her seat until the station was called and he would then help her off as best he could; that he was approached by plaintiff's father and asked as to passengers for Dawkins. The overwhelming weight of the testimony was that the train stopped from 80 to 90 yards from the regular stopping place. From these facts the jury might infer that there was such a disregard of plaintiff's rights as to amount to recklessness; that the conductor's mind adverted to his duty, and he failed to perform it. It is possible that the crowded state of the train might have led him to forget for the time his promise to the plaintiff, a matter as regards which he did not testify, but we are unable to think it at all probable that be could honestly have failed of his duty after being questioned repeatedly concerning it. The question was properly submitted to the jury, 2. The circuit judge charged the jury as follows: “The defendant was bound, not only to stop its train at the usual place, and for sufficient time, but if there were other circumstances which required extra care, even beyond that, on the part of the defendant, then the defendant was bound to give such extra care to the plaintiff, and, if the defendant failed to do that, and some volunteer, attempting not to perform the duties of the defendant, but attempting to aid the plaintiff in her efforts to alight from the train, and in that way, the plaintiff, while exercising the prudence that the circumstances required of her, and that a person of her situation, of her condition, would ordinarily exercise, was attempting to alight from the train, if you find

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