Norris v. Clinkscales

Citations

• 47 S.C. 488
• 25 S.E. 797
• 1896 S.C. LEXIS 145

Syllabus

<p>1. Evidence — Transactions with Decedent — Code, 400, Construed. — A defendant is not disqualified, under sec. 400 of the Code, from testifying as to a transaction with a decedent in an action commenced by the wife of the decedent in her lifetime, and continued and tried by her executor, when the cause of action is an alleged contract between the deceased wife and the defendant.</p> <p>2. Discretion — Evidence—Appeal—Case Distinguished. — The order of a Circuit Judge in excluding secondary evidence is appeal-able, when such refusal discloses the commission of errors of law. Congdon v. Morgan, 14 S. C., 588, distinguished.</p> <p>3. Evidence — Tost Paper — Presumption—Case Distinguished. — ' The rule, that the person who had the paper in his possession should be examined, as to the possession of the lost paper, before secondary evidence of its contents can be offered, only applies where the presumption is that he is in possession of the lost paper. Floyd v. Mintsey, 5 Rich., 373, distinguished.</p> <p>4.- Ceaim and Delivery — Verdict.—In an action in claim and delivery against two defendants, there being no allegation or proof of joint liability or privity of interest, where specific property is proven to be in the possession of each, the verdict should be against each defendant for the possession of the specific property proved to be in his possession, and for such damages against each as are proven for the detention by him.</p> <p>5. Ibid. — Prooe—Damages—Case Distinguished. — In a claim and delivery suit for property wrongfully withheld, it is necessary to prove damages for the detention thereof, if the jury are asked to find damages. Levi v. Legg & Bell, 23 S. C., 282, distinguished.</p> <p>6. Charge — Facts—Const., Art. IV., Sec. 26, Construed. — Under art. IV., sec. 26, Con. of 1895, any direct reference to the testimony in charging a jury, any expression as to what is in evidence, any remark that would amount to a stating of the testimony in whole or in par