have taken if he had known his agent, Fitzsimmons, was giving postdated checks, can have in any proper solution of the issues of this action. It was not responsive to any issue. This exception is overruled.

“(15) In requiring the witness Twitchell to testify as to certain cotton transactions between Fitzsimmons and J. T. Douglass, involving forty-five bales of cotton, when such transaction in no way related to the issues in this case, was between other parties, was not shown to have been known to or ratified by defendant company; such testimony being prejudicial to the defendant, being irrelevant to the issues in this action, and the ruling admitting it being in violation of the rules of law which forbid the introduction of testimony as to the collateral matters, and require all testimony to be responsive, and confined to the pleadings in the cause." It seems that J. T. Douglass had 44 bales of cotton, which Mr. Fitzsimmons was anxious to buy, but Mr. Douglass was not willing to sell his cotton at the price it was then bringing. Mr. Fitzsimmons then executed a paper whereby it was virtually stipulated that, while the cotton was to go into the possession of the defendant, it was not to be as the owner, but simply for convenience (we suppose, of seller and buyer, when the time for a sale was reached). Meanwhile knowledge of Mr. Fitzsimmons' misfortune became general. Mr. Douglass demanded his cotton. After a while his demand was conceded to be proper by defendant, but they (the mills) wished to buy, and did buy, the cotton. We do not know that the testimony was relevant, but it relates to so immaterial a matter that it could not possibly affect any issue, whether admitted or rejected. The exception is overruled. Our opinion is, in law, that, as long as the defendant retained the plaintiff's 35 bales of cotton after a full knowledge of the manner it got possession of them, all other issues were of little moment.

"(16) In requiring the witness Twitchell to testify what checks given by Fitzsimmons the defendant refused to pay, and to answer other questions relating to the execution and alleged consideration of said checks; such testimony being irrelevant and incompetent for the reason for which it is alleged that the testimony referred to in exception 15 was incompetent." When Mr. A. H. Twitchell, who is a most worthy man, was placed on the witness stand by the defendant as its witness, the plaintiff acquired the right of a pretty full cross-examination of such witness. He had denied plaintiff his right to the payment of his check for over $1,100, and he had refused him the delivery to him of the 35 bales of his cotton received by said defendant. It was therefore a legitimate question whether he had refused to pay other checks, and what? Let this exception be overruled.

"(17) In refusing to allow in evidence the statement of the witness Penny as to

amounts and dates of shipments of money to New York by Fitzsimmons for illegal purposes, when such testimony was clearly relevant and competent as supporting the defense, as set up, that by his unusual course of dealing with Fitzsimmons plaintiff had made it possible for defendant's funds to be misappropriated, and that plaintiff was estopped by his conduct from recovering in this action, and the ruling excluding it violated the rules of law which allow the introduction of testimony which is so responsive to the pleadings." All this witness could have told would be that Mr. Fitzsimmons quietly, and almost secretly, shipped cash, from time to time, to parties in New York, from Jonesville, S. C. There was no earthly connection existing, suggested, or conceived of between Penny and the plaintiff, or Fitzsimmons and the plaintiff, or all three of them, as to any such money. The shipments were in fact made before plaintiff sold the defendant his cotton. Let this exception be overruled.

"(18) In refusing to allow in evidence the statement of the witness Nicholson as to drafts paid by Fitzsimmons through his bank, when such testimony was clearly relevant and competent for the same reasons stated in exception 17." For the same reasons given in overruling exception 17, we overrule this exception.

"(19) In refusing to allow the introduction of the testimony referred to in exceptions 17 and 18, because it was not first shown that such transactions were known to plaintiff, when he had previously ruled that other transactions of Fitzsimmons, with which plaintiff had no connection, should be admitted in evidence, and without first requiring that knowledge thereof by defendant should be known." This testimony was ir relevant to the issue. Its only tendency was to show that defendant had been unfortunate in its selection of an agent. This neither plaintiff nor defendant denied. The less said of it, possibly, the better. This exception is overruled.

"(20) In allowing the witness Law to testify as to certain transactions between Tucapaw Mills, Arkwright Mills, and Fingerville Manufacturing Company, and certain of their customers, respectively, relating to the storing of cotton, and allowing cotton certificates issued by said mills to be introduced in evidence, when such testimony had no reference to the issues in this action, but to transactions between parties entirely different from those before this court, and was, therefore, incompetent; the ruling allowing this testimony being in conflict with the rules of law which requires all testimony to relate to and to be confined to the issues in the case pending." The only relevancy of this testimony was to show that cotton was sometimes not sold for cash. We cannot regard storing cotton in a warehouse, giving a certificate for such cotton as stored, and the

use of such certificate in obtaining money as any sale of cotton on credit. Still the testimony had no possible effect on the issues on trial here. The exception is overruled. The circuit judge, in his charge, held that all this testimony was irrelevant.

"(21) In allowing the witness McCravy to testify that he had delivered cotton to the Whitney Mills on an agreement that it was to be settled for afterwards, the ruling admitting this testimony being erroneous for the reasons stated in exception 20. (22) In allowing witness Duncan to testify as to certain contracts the Union Warehouse Company had made with its customers as to storing cotton, and allowing one of these written contracts in evidence." For the same reasons set forth in disposing of the nineteenth and twentieth exceptions, we overrule exceptions 21 and 22.

"(23) In not holding that all the testimony offered as to transactions between other mills and their customers and warehouse companies and their customers, referred to in the exceptions immediately pending, had no relation to the issues in this case, and should not be allowed in evidence to influence the minds of the jury; and in not excluding such testimony as incompetent, the ruling admitting this testimony being erroneous for the reasons stated in exception 20." We cannot view this testimony as relevant to the issues here being tried, but, as before said, such testimony was perfectly harmless. It could not possibly prejudice the defendant with the jury. It is almost impossible in long-protracted trials that everything should be perfectly free from exception. When errors are perfectly harmless, we will not sustain them, to the extent of making them grounds for a new trial. Let this exception be overruled.

"(24) In charging the jury as follows: 'Suppose another man comes to you and says, "I represent the firm of Brown & Jones, dealers in stock, and I am buying stock for them as their agent, and he desires to purchase any stock that you may have;" again, your first inquiry would be, is he the agent of Brown & Jones? If you are satisfied as to the fact of the agency, the next question is, what is the limit of his agency? what is he authorized to do? He says he is authorized to purchase stock for that firm. You may ascertain that in more ways than one; or it may be possible for you to communicate with Brown & Jones, and ascertain from them exactly what the power conferred upon that agent amounts to; or it may be possible for you to ascertain from the conduct towards this agent, and the transactions which the agent is concerned in, and the notoriety of the fact that he has been representing himself as an agent of Brown & Jones, and has been purchasing stock, until it may well be presumed that he has been acting as the agent of Brown & Jones. In such case you would not be required to apply at headquarters-Brown

& Jones-for information. Such an agency may be ascertained without special inquiry at headquarters,-I mean without special inquiry of the principal,—if the public are satisfied that the principal has allowed the agent to act as if he were their agent, and has held him out to the world as their agent.' The error in such charge being that the jury was instructed that one dealing with such agent need not inquire of the principal, but might rely on appearances, if the agent was acting notoriously for his alleged principal until it could be presumed that he was clothed with authority, and, again, that the obligation to inquire and know the fact and extent of the agency was removed whenever the public were satisfied that the alleged principal had held him out as agent. We submit the law is that one dealing with another must, at his peril, be bound by the facts, and not by what the public are satisfied of, or what appears to or is presumed by them as to the facts and extent of the agency assumed." As announIced by the circuit judge, it was his purpose to give the jury an illustration of the way the idea of agency got possession of the mind of people who come in contact with such agency. This is but an extract from the charge to the jury. The circuit judge charged the jury fully on the law of agency, adopting all the requests to charge of the defendant. Let the exception be overruled.

"(25) In giving to the jury, in the illustration of one buying stock, an erroneous idea of the distinction between a general and a special or limited agency, to the prejudice of the defendant, in that the jury were informed that the agency alleged and relied on by defendant was a limited one, and the power of a general agent, as general agency was defined, was much broader." The general charge of the judge, as we have before | remarked, was full and clear, adopting in a large measure the views of the defendant in its request to charge, which were all acIcepted by him. We cannot see that the Brown & Jones illustration could have any effect injurious to the defendant, especially in view of what was stated and repeated in the other portions of the charge on the subject of agency. Let the exception be overruled.

"(26) In several times charging the jury, both in his general charge and in limiting and modifying requests to charge, that one dealing with an agent was not bound by secret instructions and limitations on the agent's power, when such charge had no relevancy to the case as made, because there was no evidence showing or tending to show any such secret instructions. The portion of the charge here complained of was erroneous in law, and prejudicial to defendant, in that it did not relate to the case made by the testimony, but has a tendency to lead the jury to believe that in the opinion of the presiding judge the case was one where such secret instructions had been given, and being thus

a charge on the fact." We cannot see how this language used by the circuit judge could possibly prejudice the defendant. It was sound law, but had no application to the cause on trial. If there were no facts proved on the trial relating to secret instructions, what the judge said could not be said to be a charge on the facts, in the light of our constitution.

"(27) In charging the plaintiff's fourth request, the error here being in making the principal's liability for his agent's act depend on what conclusions an ordinarily prudent person would come to as to the agent's authority in one particular from his admitted authority in other particulars. An ordinarily prudent person might think that one having authority to overdraw his principal's bank account might also pledge his credit by giving notes. The law, we submit, is otherwise, and that the charge in this particular is erroneous." Let us see what this fourth request was. We find it to be as follows: "If the management of its account with the Merchants' & Planters' Bank by its agent was done with the knowledge and consent of the defendant company, and if it was conducted in such a manner as to lead a man of ordinary caution and prudence to believe that the agent had authority to obtain credit to buy, or to buy on credit, and if the agent referred the plaintiff to the officers of the bank to ascertain whether the check alleged to have been given him was good, and would be paid, and if the officers of the bank, relying on the previous course of dealing between the defendant and the bank through the defendant's agent, were led to believe, and did believe, that the defendant's agent had authority to give such a check, and if a person of ordinary caution and prudence in business would, from the past dealings between the defendant and the bank, have been warranted in so believing, then the defendant would be bound by the acts of its agent within the apparent authority which such course would have indicated." When a request to charge is referred to as to its terms and effect, such requests should be either copied or completely embodied in the statement of its purport. Reading this exception in connection with plaintiff's fourth request to charge, the value of the preceding observation is manifest. The request to charge contains sound law. A principal must be responsible for the acts of its agent within the limitations of the authority conferred upon the agent. When this limitation of authority is to be derived from the dealings of such plaintiff and agent, the rule must be such as a person of ordinary caution and prudence in business would have been warranted in believing to exist. We overrule this exception.

"(28) In modifying the plaintiff's fourth request to charge in such a way as to instruct the jury, in effect, that a mere authority to buy cotton does not include or imply power to buy cotton on a credit, and to give post

33 S.E.-47

dated checks therefor, still if, in addition to the mere giving of power to buy cotton, special instructions are given not to buy except for cash, one dealing with such an agent would not be bound by such special instructions unless they were known to him." The circuit judge did not modify the fourth request of plaintiff. This exception is overruled.

"(29) In charging the jury, in connection with the twelfth request, that the taking from an agent of anything to make good the loss or injury which his unauthorized act has entailed would amount to ratification." When the whole charge of the circuit judge is read, it is apparent that there is no foundation as to error pointed out here. It seems to us that the retention by defendant of plaintiff's 35 bales of cotton after defendant knew all the facts was a ratification of its agent's contract to purchase for the principal such 35 bales of cotton. Let the exception be overruled.

"(30) In instructing the jury, at the conclusion of his honor's reference to the requests to charge, as to the difference between a general agency and a special agency, and, as we submit, instructing the jury erroneously as to such difference, to the prejudice of the defendant; and, further, in charging the jury that it would be necessary for them in this case to determine whether the agency was general or special." We are satisfied that the many explanations of the circuit judge as to agency in its different forms were entirely understood by the jury. It cannot destroy such a charge that at its close there may be a little looseness of expression. Let this exception be overruled.

"(31) In failing to instruct the jury as to the law relating to estoppel, when the defense of estoppel was clearly pleaded, and when the constitution of the state of South Carolina requires that circuit judges shall charge the law relating to the issues raised in the pleadings; and particularly when the circuit judge, in his preliminary charge to the jury, expressly stated that in his general charge he would give them the law relating to defense of estoppel." The appel

lant fails to show wherein any basis had been made in the testimony for the application of estoppel. If no such basis was made, the circuit judge would have been wasting valuable time to be discussing abstract questions of law in the presence of the jury. We are obliged to overrule this exception.

"(32) In charging the jury, when they were I called back from the jury room, in answer to the question of one of the jurors that, if the defendant accepted any property from his agent in satisfaction of injury caused by an unauthorized act, it would amount to ratification. Especially was this instruction erroneous and prejudicial to the defendant in that, in connection with such instruction, the jury were not charged that, if the property referred to was accepted upon some

loss other than that caused by the particular transaction involved in this issue, it would not, of course, amount to a ratification of the particular act alleged in this action to be unauthorized. Appellant respectfully submits that, in view of the fact that other losses were proven to have been caused defendant by their agent, the general terms used by the circuit judge were calculated to lead the jury to believe that, if the insurance policy was turned over on account of any loss, it would amount to a ratification." In response to a request from the jury, the circuit judge did add some words on the subject of what amounts to a ratification by reason of benefits received, etc.; but this language, taken in connection with the general charge, shows that the jury could not have been misled thereby. We will, therefore, overrule this exception.

And, lastly, we will next consider the thirty-third exception: "(33) In instructing the jury, when they came back into the court room, as follows: 'It is the theory of the law that jurors shall come to an agreement, and find verdict, especially on the civil side of the court, when the proof necessary on which to base a verdict is not proof beyond a reasonable doubt, but only proof to the extent of the preponderance of the evidence, and when a verdict shall be rendered if the measure of the proof has not been filled up'; the error being in charging the jury that there is a distinction between civil and criminal cases in the matter referred to, when, as we respectfully submit, there is no such distinction between the two classes of cases as to the obligation of the jurors to adhere to their conscientious convictions upon the one part, and to avoid being moved by caprice or mere pride of opinion upon the other, in their efforts to reach a verdict. To charge the jury that there was a distinction between civil and criminal cases, and, in effect, that the duty to avoid a mistrial was greater in civil than in criminal cases, was error of law, and prejudicial to defendant." We cannot see that injury resulted to the defendant from this language used by the circuit judge. The exception is therefore overruled.

It is the judgment of this court that the judgment of the circuit court be affirmed.

land, thereby injuring plaintiff, an amendment alleging that the embankment was made so to project owing to its negligent and unskillful construction was properly allowed, under Code Proc. $193, allowing one amendment of course, unless made for delay.

2. Where a complaint alleges taking of plaintiff's land by a railroad company because of the negligent construction of an embankment on its right of way, whereby it spread over plaintiff's land, it does not allege a taking under the right of eminent domain, so as to compel plaintiff to seek relief under such procedure.

3. Where, by reason of unskillful construction of an embankment on a railroad right of way, the clay for the embankment spreads beyond the right of way, and on plaintiff's land, it gives a right of action by plaintiff against the railroad company for such negligence.

4. A complaint alleging that a railroad embankment was so negligently constructed that it spread beyond the right of way and over plaintiff's land sufficiently alleges negligence, though it avers that it was the natural slope of the clay used in making the embankment which caused it to project beyond such right of way.

5. A railroad company is liable where the earth of an embankment spreads beyond its right of way onto land of adjoining owner, though the earth so fell upon the land in a natural way, and the fill was properly constructed. Appeal from common pleas circuit court of York county; George W. Gage, Judge.

Action by Joseph M. Sims against the Ohio River & Charleston Railway Company. From the grant of an order allowing plaintiff to amend his complaint, and from an order overruling a demurrer to the amended complaint, defendant appeals. Affirmed.

Geo. W. S. Hart and N. W. Hardin, for appellant. Jas. F. Hart and John R. Hart, for respondent.

POPE, J. The plaintiff claims that the defendant has injured him in the sum of $525, arising from filling up a trestle, and that in so filling up such trestle on the right of way the defendant had over the plaintiff's land the clay with which the fill was made was made to go 25 feet on each side of and beyond defendant's right of way through plaintiff's land. Plaintiff points out in what particulars he is injured. When the first complaint was served, on July 29, 1898, it only contained an allegation that, the embankment being made by clay, whose natural slope in said embankment has caused it to project outside of and beyond defendant's right of way, and cover with clay plaintiff's land on either side of said track to the width of 25 feet, etc. On August 13, 1898, defendant served its answer, and on August 26, 1898, the plaintiff amended his complaint by alleging that the embankment of defendant was, owing to its negligent and unskillful construction, made to project outside of and beyond defendant's right of way, etc. Such proposed amended complaint was immediately returned, with the following notice indorsed thereon: "This is returned because the amendments are beyond the scope of amendments that may be made as a matter of course, in this: that the amendment hereby sought to be made in

troduces a wholly different [alleged] cause of action. No unskillfulness nor faulty construction of the embankment having been charged against defendants in the original complaint." On September 10, 1898, notice of motion before Judge Gage was given by the defendant for an order striking out said amended complaint upon the ground that such amendments, so called, are beyond the scope of amendments that may be made as a matter of course, in this: that the amendments sought to be made introduce a different (alleged) cause of action, etc.; also that it would at some time seek an order from Judge Gage requiring the plaintiff to make his amended complaint more definite and certain by stating these causes of action (indicating them) separately. After argument the circuit judge held that the plaintiff was entitled to amend his complaint as he had already chosen to do, but he held that the defendant's motion requiring plaintiff to state his three causes of action separately should be granted. This order was dated September 14, 1898. On September 16th the plaintiff amended his complaint as required by this order. On September 17, 1898, the defendant served its notice of appeal from the order of September 14, 1898. On October 29, 1898, defendant served notice that it would orally demur to the amended complaint because it failed to state facts sufficient to constitute a cause of action. This demurrer was overruled by Judge Buchanan in an order dated November 7, 1898. So now the defendant, by its appeal, questions first the order of September 14, 1898, and then that of the 7th day of November, 1898. We will dispose of those appeals in the order of time. By section 193 of the Code of Procedure it is provided: "Any pleading may be once amended by the party of course, without costs, at any time within twenty days after it is served, • unless it be made to appear to the court that it was done for the purpose of delay, and if it appear to the court that such amendment was made for such purpose, the same may be stricken out, and such terms imposed as to the court may seem just." In Sullivan v. Sullivan, 24 S. C. 474, this court was called upon to construe this section to mean that a party had, of course, a right to amend its pleadings within the 20 days, provided it was not made to appear to the court "that it was done for delay, that being the only limit to the right by the terms of the section," except while this court evidently leaned to this construction in those cases where a wholly different cause of action. would be substituted under this power of voluntary amendment. By the actual decision in Sullivan v. Sullivan, supra, it was allowed a plaintiff to so amend his complaint under section 193 of the Code as to divide his causes of action as presented in his original complaint-assault and slander-so that

he had one complaint alleging as its cause of action assault and battery, and the second, with its cause of action as slander. We do not see that the plaintiff in the case at bar has done any more than was sustained by this court in the case just cited. Hall v. Woodward, 30 S. C. 574, 9 S. E. 684; Wallace v. Railroad Co., 37 S. C. 341, 16 S. E. 35. We must overrule this ground of appeal.

Now, as to the appeal from the order dated November 7, 1898. In passing upon this question we will reproduce the text of the answered complaint: "Amended Complaint. The plaintiff herein respectfully shows to the court for a first cause of action: (1) That the defendant railway company is now, and was at the times hereinafter stated, a corporation created and existing under and by laws of the state of South Carolina, and that plaintiff herein is a resident of York county in said state. (2) That the defendant company owns and operates a line of railway with a right of way over and through the lands of plaintiff, lying in said county, on both sides of Bullock's creek at the point where defendant's railway track crosses said creek, which said lands extend above and below the point of said crossing; the lands at and below said crossing being alluvial lands of great value. (3) That on or about the 1st day of June, 1897, defendant company began the construction of an embankment through plaintiff's lands at the point where its track crosses Bullock's creek, and completed the same about the 1st day of November, 1897. That said embankment supports defendant's railway track across said creek in place of the trestling on which said track was first constructed, and has a length of six hundred and forty feet, and a height of about fifty feet, and the natural slope of the clay used in making said embankment, owing to its negligent and improper construction, has caused it to project outside of and beyond defendant's right of way, and covering with clay plaintiff's land on either side of said track to the width of twenty-five feet, and depriving plaintiff of the use thereof, to his injury and damage in the sum of one hundred dollars. And defendant alleges that the natural effect of the subsidence of the said embankment, owing to its construction as aforesaid, and replenishing the same from time to time, will cause it to cover a yet greater area of plaintiff's land, and by reason thereof, and by reason of the washing away of the clay composing said embankment, and depositing the same on his lands lying below, the value of certain ten acres of alluvial land, known as 'bottom lands,' is impaired, and plaintiff is damaged to the amount of one hundred dollars." When the circuit judge passed upon this question he used this language: "This is a motion by defendant to dismiss the first and third causes of action stated in the complaint. It is practically a de