The research of counsel has placed before me many cases which in varying degrees confirm the conclusion I have reached. It is not necessary that they should be reviewed in this decree. The conclusion reached by me is the important announcement here, rather than to display and analyze an array of authorities bearing, some closely, some remotely, upon that conclusion.

It is, therefore, hereby ordered, decreed, and adjudged that the plaintiffs are the owners of the lands sued for in the complaint and are entitled to the possession thereof.

Messrs. Earle & Greene and Grier, Park & Nicholson, for appellants, submit: That the will of Bazzel Davis devised the lands to William Davis upon a condition precedent, and the condition not having been performed the respondents, heirs at law of William Davis, have no claim whatever to the lands in question: Minor's Institutes, vol. II, pp. 261, 265, 266; 15 S. C. 442; 2 Strob. Eq. 212; 40 Cyc. 1649; 19 S. C. 170; 63 S. C. 490; 3 Rich. Eq. 316; 2 Rich. Eq. 42; 28 S. C. 325; 3 S. C. 212; Rich. Chanc. 321; Jarman on Wills, vol. II, p. 2, p. 10, p. 13, 5th Ed.; 4 Kent Com. 144145; Corpus Juris, vol. XII, 407; Tiffany on Real Estate, vol. I, p. 65; 63 S. C. 490; 63 S. C. 252; Rothwaller v. Miles, 4 Eq. 215; 40 Cyc. 1717, 1718; 6 Am. and Eng., 2d Ed. 504. The intent of the testator is the guiding principle: 10 S. C. 366. The words of this will certainly create a technical condition precedent: 7th Amer. Dec. 264; 28 S. C. 326. Illustrations of conditions precedent: Tiffany on Real Property, vol. I, No. 65; 12 Corpus Juris 407n, 18; 95 Ill. 206; 42 S. C. 372; 28 S. C. 325; 63 S. C. 490-1; 6 Rich. Eq. 217; 40 Cyc. 1691-2. Conditions precedent must be strictly performed: 40 Cyc. 1717-1718; 6 A. & C. (2d Ed. 1504); 28 S. C. 326. Conditions precedent must be strictly construed: 19 S. C. 181-2; 7 Amer. Dec. 264.

Messrs. Tillman & Mays, for respondents, submit: The will created a charge on the land: 74 S. C. 486; 46 S. C.

169-180; 68 S. C. 336; 79 A. S. R. 765 (note); 55 Wis. 637; 13 N. W. 873; 61 Minn. 326; 63 N. W. 736; Gardner on Wills, p. 581; 111 Ill. 382; 78 Me. 504; 7 Atl. 383; 23 R. I. 180; 49 Atl. 699; 106 Mich. 695; 64 N. W. 730; 49 N. J. Eq. 344; 25 Atl. 963; 96 N. C. 358; 2 S. E. 528; 60 Am. Rep. 420; 119 Pa. 645; 13 Atl. 483; 40 Cyc., p. 1697. If condition, what kind? 3 Peters 374; 102 A. S. R. 469 (note); 79 Am. St. Rep. 750; 85 Md. 79; 60 Am. St. Rep. 308; 36 Atl. 354; 35 L. R. A. 692; Gardner on Wills, paragraphs 491 and 494; 44 Am. Dec. 744 (note); 78 S. C. 118; 87 S. C. 65; 60 A. S. R. 308; 6 Rich. Eq. 219; 7 Am. Dec. 264; 1 Ves. 147; 63 S. C. 474. Under the facts here it is a condition subsequent: 38 Me. 18; 40 Cyc. 1719.

January 26, 1920.

The opinion of the Court was delivered by MR. JUSTICE HYDRICK.

The decree of the Circuit Court is affirmed for the reasons therein stated.

Affirmed.

10332

WILSON v. PALMETTO NATIONAL BANK OF COLUMBIA.

(101 S. E. 841.)

1. JURY-QUESTION TO JUROR AS TO ANY INDEBTEDNESS TO DEFENDANT BANK NOT REFLECTION ON DEFENDANT.-In an action against a bank for failure to honor plaintiff depositor's check, the question by the Court to the jurors whether any of them were indebted to defendant bank was not erroneous as suggesting that the bank was such a harsh creditor that it would take vengeance on any of its debtors who should render verdict against it.

2. JURY-RIGHT TO FAIR JURY AND CONSEQUENT PROPER CONDUCT OF COURT IN PROCURING IT.-The parties to an action are entitled to a fair and impartial jury, and the trial Court is to be commended for trying to secure such a jury, as by seeking to discover whether any of the jurors were related to plaintiff or were employees, stockholders, or debtors of defendant bank.

3. APPEAL AND ERROR-ADMISSION OF WHOLE LETTER OF WHICH ONLY A PART WAS ADMISSIBLE HARMLESS IN VIEW OF LIMITING INSTRUCTION. In a depositor's action against his bank for refusal to honor a check, admission in evidence of a letter from plaintiff depositor's attorney to the bank, stating that he was handling a claim against the bank for damages for refusal to honor the check, under instructions not to consider the letter as evidence for any purpose except to show the bank had notice of the depositor's claim, held not reversible error, though it would have been better to have had only the material portion of it read to the jury.

4. APPEAL AND ERROR-ASSUMPTION JURY OBEYED INSTRUCTIONS.-The Supreme Court must assume that the jury obeyed the instructions of the Court as to the purpose for which they might consider a certain letter in evidence.

5. BANKS AND BANKING INSTRUCTION TO RETURN SUBSTANTIAL DAMAGES FOR REFUSAL TO HONOR CHECK NOT ERRONEOUS.-In a depositor's action against his bank for refusal to honor a check, instruction that the damages awarded in such case should be something more than nominal, should be substantial, but temperate in amount, held not improper through the use of the word "substantial" in contradistinction to "nominal," in view of the statement the damages also must be temporate and moderate.

6. BANKS AND BANKING-TWO HUNDRED DOLLAR VERDICT FOR REFUSAL TO HONOR TWENTY-SEVEN DOLLAR CHECK NOT EXCESSIVE.-Verdict for $200 in favor of defendant bank's depositor for refusal to honor his check for $27 was not so large as to indicate the jury were misled or governed by passion or prejudice.

Before WHALEY, County Judge, Richland, March term, 1919. Affirmed.

Action by J. W. Wilson against the Palmetto National Bank of Columbia. From judgment for plaintiff, defendant appeals.

Messrs. Weston & Aycock, for appellant, submit: That it was error to admit in evidence, over defendant's objection, a certain letter written by plaintiff's attorney to defendant, the error being that it was a mere self-serving declaration on the part of plaintiff: 97 S. E. 843. That his Honor erred when he instructed the jury to find a verdict for substantial damages, "temperate in amount," when he should have charged them to find a verdict for "temperate" dam

ages: 74 S. C. 185; 23 S. E. (Ga.) 191; 3 A. & E. Ency. of Law, 1st Ed. 226; 105 S. C. 17. His Honor erred in charging the jury, "that the law considers that the dishonoring of a check, when there are funds in the bank sufficient to meet that check, is a declaration, as it were, that that party is to a certain degree insolvent, and that that party does not deal or has not good business dealings." The error being that by such charge the Court exaggerated beyond the extent of the law the damage incurred by plaintiff: 69 S. W. (Ky.) 759; 39 Neb. 437; 58 N. W. 82; 43 L. R. A. 190; 64 Minn. 40; 65 N. W. 1086; 31 L. R. A. 552; 58 Am. St. Rep. 522; 58 S. W. (Tenn.) 261; 51 L. A. 255; 80 Am. 857; 96 Ga. 334; 23 S. E. 190; 51 Am. St. Rep. 139; 80 S. C. 207.

Messrs. Graydon & Graydon, for respondent.

January 26, 1920.

The opinion of the Court was delivered by MR. JUSTICE HYDRICK.

Defendant appeals from judgment for plaintiff for $250 damages awarded to plaintiff by a jury of Richland County Court for the refusal of defendant to pay a check drawn by plaintiff on defendant, notwithstanding plaintiff had on deposit sufficient funds to pay the same.

The refusal to pay the check was the result of a mistake brought about in this way: Plaintiff had an account with defendant in 1917, and had checked out all the funds to his credit, except one dollar. On October 18. 1918, he deposited $100. The existing account was overlooked, and a new account was opened. Thus plaintiff had two accounts on defendant's books. The check refused was drawn October 24, 1918, in favor of Maggie Wilson for $27, and was indorsed by her to one Campbell, who presented it at the bank on November 12th. The clerk to whom it was presented took it to the bookkeeper, and asked if plaintiff had sufficient funds to his credit to pay it. The bookkeeper turned to the account which showed a credit of only one

dollar, and replied that he had not, and the check was marked "N. S. F." (not sufficient funds) and returned to Campbell, who notified plaintiff of its dishonor. Thereupon plaintiff paid Campbell the amount of the check, and thereafter brought this action for damages.

Before drawing the jury, the Court asked the jurors if any of them were related to plaintiff, or were employees or stockholders of defendant; also, if any of them were

indebted to defendant. There was no affirmative. 1 response to any of these questions. Defendant

objected to the last question and assigns error of prejudice in asking it, on the ground that the jurors may have inferred from the question that defendant was such a harsh creditor that it would take vengeance upon any of its debtors who should render a verdict against it. The inference suggested was neither natural nor probable. The most reasonable inference was that a debtor might be biased unconsciously in favor of his creditor.

Whether the relation of debtor to one of the parties would be sufficient to disqualify a juror is not an issue. But, speaking generally, we may say that the parties to an 2 action are entitled to a fair and impartial jury, and a

trial Court is to be commended for trying to secure such a jury. The question asked was not prejudicial.

On cross-examination of plaintiff, he was asked if he made any complaint to defendant, or notified it of its error in refusing to pay his check, or gave it any opportunity to

apologize or make amends, before suit. Thereafter, 3,4 plaintiff was allowed, against objection, to introduce

in evidence a letter, dated January 11, 1919, written by plaintiff's attorney to defendant, to the effect that plaintiff had placed in his hands for adjustment, or suit, if necessary, a claim against defendant for damages for refusing to honor his check, and requesting prompt attention. The letter further stated that plaintiff had been injured in his credit and reputation, and had been put to considerable incon