on

1. Defendant having preferred a
request with respect to the
bona fide purchase without
notice cannot assert that it
was an equitable defense, not
proper to be submitted to
jury. Cathcart v. Matthews 1
2. Where demurrer to complaint
is properly sustained
ground that the action could
not be maintained against de-
fendant, reserving the right to
further demur, if error, is
harmless. Mullinax v. Ham-
bright
2
3. In an action on notes, where
on prior appeal the only ques-
tion decided was whether cer-
tain alterations were material,
etc., the issue whether plain-
tiff was a holder in due course,
as defined in Negotiable In-
struments Act, section 52, was
not before the Court, and the
Supreme Court did not de-

termine the question despite
certain language in its opinion
to render its decision on prior
appeal res judicata of the point
that plaintiff was a holder in
due
course. Commercial
Security Co. v. Donald Drug
Co.
48
4. An opinion unequivocally de-
claring error in orders below
renders unnecessary a distinct
judgment of reversal, or modi-
fication, especially in view of
a mandate to proceed accord-
ing to the views announced.
Tedder et al. v. Tedder et
91

5.

al.
Where the necessary effect of
an appellate decision was to
vacate a lower Court's order
appointing a receiver and
enlarge the scope of the ref_
ence order to permit de-
fendant's evidence of better-
ments to lands sought to be
partitioned, it was error to
deny defendant's motion to re-
commit to referee to take
such evidence. Id.
91
6. It is incumbent on all parties,
including the trial Court, to
require further proceedings ac-
cording to mandate, and was
no more obligatory on defend-
ants than on plaintiffs to call
for prompt hearing, so that
plaintiffs, primarily the actors,
could not complain of defend-
ants' delay. Id...........................91
In a partition suit plaintiffs'
contention to obviate refusal
of Court to recommit to refree
on remand that some testimony
as to betterments was taken
without objection, and other
testimony defendants desired
thereon would have been taken

7.

under the reference order, is
not well taken, where there
was doubt as to the order be-
ing broad enough, and a motion
to specifically allow such evi-
dence was refused, and the
order modified by giving
"leave to report testimony in
relation to any special matter
arising under the decision of
the Supreme Court herein,"
which decision did not relate
to betterments. Id...............91
8. In a partition suit, it was error
to conclude defendants would
suffer no prejudice from re-
fusal to recommit for further
testimony as to betterments,
evidence of which was before
the Court for determining rents
and profits, where there was
no testimony of actual value
of improvements. Id......... 91
9. In an action against a railroad
for injuries at a crossing,
where the Court charged at the
request of defendant that as
between defendant and
Federal Director General any
recovery by plaintiff would be
paid by the United States
Government, and not by de-
fendant, any error in the case
because the road at the time
of the accident was under
Federal control was harmless
to it. Wyman v. A. C. L. R.
R.
138
10. The lack of contributory neg-
ligence should have been
brought to the trial Court's
attention by motion to direct
verdict on such issue. Sandel
v. State

the

.168

to that fact, and, if they do
not, the error is not reversible,
so that an exception to in-
structions because they sub-
mitted an issue established by
undisputed evidence cannot be
sustained, where the record
does not show that the atten-
tion of the Judge was called
to the objection. Hirschman
& Sons v. Koester
202
12. The Supreme Court, having
dismissed an appeal, has full
jurisdiction to reinstate it, in
its discretion. Dillishar et
ux. v. Bell
258
13. In agent's action for commis-
sions on sales of goods, where
defendant claimed that agent
had withheld money collected
for defendant, but where de-
fendant had been reimbursed
by agent's surety, for the
amount so withheld, refusal to
permit defendant to amend
answer by setting up counter-
claim for amount withheld was
harmless, where agent had as-
signed the judgment recovered
against defendant to surety to
protect from loss by reason of
the payments to defendant.
McRae v. Bowser & Co. 262
14. Exclusion of evidence to con-
stitute ground for reversal
must be shown to have been
prejudicial, by appellant.

Id.
262
15. In agent's action for commis-
sions for selling goods, where-
in defendant was given notice
to produce its books and ac-
counts, defendant, after re-
fusal to produce its books,
could not complain as to the
indefinite nature of plaintiff's
evidence as to the amount of
Id..
the sales.
.262

16. In an action for injuries to
automobile struck by street
car, instruction that jury

should consider the fact that
a street car is confined to a
track, and an automobile is
not, held not prejudical, being
a simple statement as to a
well known fact. North State
Lumber Co. v. Chas'n etc. Ry.
Co.
267
17. In action for damage to auto-
mobile struck by street car at
street intersection at which
traffic officer was stationed,
refusal to instruct that it was
the motorman's duty to look
out for danger in spite of the
order of the traffic officer, if
error, was harmless, where
automobile driver admitted
that he crossed the intersec-
tion without looking
to the
right or left, since it was as
much driver's duty to look out
for danger, as it was the duty
of motorman. Id.
267
18. On motion to change the place
of trial on the two grounds
that county in which the action
was brought was not the prop-
er county, and that the con-
venience of the witnesses and
the ends of justice would be
promoted by the change, the
Court's refusal of motion will
be sustained on appeal, if it
can be sustained on either
ground. Panama Real Estate
Co. v. Dime Savings Bank 290
19. To secure reversal of the judg-

ment for denial of leave to
amend the answer, appellant
must satisfy the Court that the
trial Judge erroneously ex-
ercised his discretion. Trotti
v. Neams

292

order

20. Where objections were made
to questions asked witnesses,
but Court made no ruling
thereon, the Supreme Court
cannot, on appeal from an
directing a verdict
against the party offering the
evidence, hold that the answers
to those questions were incom-
petent. Murph v. Lincoln
Reserve Life Ins. Co.
........318
21. Error of Court, if any, in im-
pliedly threatening to keep
jury together all night and
perhaps longer on their in-
ability to agree on a vedict,
will not be permitted to dis-
turb verdict, where, upon con-
sideration of the evidence,
the Supreme Court is satisfied
that any fair jury would have
found the same verdict, if
there had been no error.
Harper v. Abercrombie 360
22. In an action on an accommo-
dation note, where there was
a dispute as to whether cor-
porate stock was pledged to
secure such note or other notes
of the accommodated party,
and the court explicitly charged
that if defendant's contention
was true, plaintiff was bound
to apply the collateral to the
satisfaction of the defendant's
note, a verdict for plaintiff
concluded such issue against
defendant. Enterprise Bank
v. Lyles

..381

which negligently constructed
a bank, so as to overflow
plaintiff's adjoining property
exclusive of question asked by
plaintiff of defendant railroad's
superintendent of construc-

tion work as to whether or
not the engineer advised the
superintendent of defendant
company that the bank should
be done away with, though
claimed to have been com-
petent to show wilfulness,
held harmless to plaintiff,
where the jury rendered
verdict for defendant showing
he was not entitled to actual
damages. Foreman v. Augusta-
Aiken Ry. & C. Corp'n......400

25. Where the Supreme Court on
declared
appeal had
a deed
void on condition defendants
pay a judgment and costs
within 30 days, but otherwise
confirmed the sale, defendant
could have given notice and
taxed all costs, or he could
have made his own calculation
of costs and tendered the cor-
rect amount as provided for in
the judgment of the Court,
but, if he failed to comply
with the condition, judgment
was properly rendered against
him. Miller v. Goodwin....410
26. Where appellants failed to
satisfy the Supreme Court
that a county Judge erro-
neously exercised his discre-
tion in refusing to grant an
injunction pendente lite, the
appeal will be dismissed.
Frederick et al. v. Brown et
.416

al.

27. The finding of fact by the
Circuit Judge on an equitable
issue will be sustained, unless

28. In an action for breach of a
contract for the sale of land
where the defendant establish-
ed his right to reform the
contract to provide only for
sale of the timber, but the
Court erroneously decreed a
rescission of the contract, and
it appeared that the timber
rights had been sold under a
consent order and the pro-
ceeds deposited to await the
outcome of the suit, so that
defendant was entitled to the
fund which represented
subject matter of the contro-
contract
versy, whether the
was reformed and specifically
enforced or was rescinded, the
decree awarding the fund to
him will be affirmed, regardless
of error as to
rescission.
& G. Co.

29. Questions, argued but

the

.466

not

466

passed on by the Circuit
Judge, or covered by excep-
tions, will not be considered on
appeal. Bellinger v. U. S. F.
& G. Co.
30. That the trial Judge assigned
the wrong reason for an order
is not reversible error if the
order was right. Calhoun v.
So. Ry. Co.
.487
31. In an action against a railroad

company and its employees
for the death of a passenger,
where the judgment for puni-
tive damages as against the
railroad company was in effect
judgment against the govern-