more witnesses declaring such alteration. As another writing signed by the devisor, it has the same defect as where offered as a will. It has but two witnesses, while it requires three to give it validity.

"But the cases go further, and hold that if the writing declaring the revocation be part of a will, and executed as such, though the instrument be defectively executed, so that it cannot operate as a will, the clause of revocation cannot be set up as another writing revoking any former devise. That being executed for a will, the clause is like every other declaration therein of the testator's will and intent, is ambulatory, and the whole instrument stands or falls together: Laughton v. Atkins, 1 Pick. 535; Eccleston v. Speke, Carth. 79."

This

525 Thirty-seven years have elapsed since the rendition of the foregoing decision, during which time the statutes have undergone several revisions, but the provision relating to revocation of wills has not been substantially modified. fact may fairly be taken as an indication of legislative satisfaction with the construction placed upon it as aforesaid. Acquiescence for more than a generation is sufficient approval.

The statutory provisions for revocation by will properly executed, or by some writing declaring an intention to revoke executed like a will, are neither identical nor interchangeable. They differ materially in that the former relates to a will while the latter does not. One looks toward the future while the other regards the present. The writing declaratory of an intention to revoke is evidence of a present intention, and when executed becomes of itself a complete revocation. But the revocation by will takes effect only when the will of which it forms a part becomes effective, and that can never be in the lifetime of the testator.

For these reasons we are constrained to hold that the superior court erred in directing the jury to return a verdict for the appellant. The other exceptions need not be considered in this view of the case.

The appellee's exception is therefore sustained, and the case is remitted to the superior court for further proceedings, in accordance with this opinion.

The Operation of a Revocatory Clause in a Will is, according to some authorities, immediate and absolute, and the fact that such will is destroyed, or cannot be found after the death of the testator, does not revive the former one: In re Noon's Will, 115 Wis. 299, 95 Am. St. Rep. 944, and see authorities cited in the cross-reference note thereto.

CASES

IN THE

SUPREME COURT

OF

SOUTH CAROLINA.

CHARLES v. ATLANTIC COAST LINE RAILROAD COMPANY.

[78 S. C. 36, 58 S. E. 927.]

CARRIERS, CONNECTING-Loss of Freight-Liability for.If the last carrier collects freight charges on the whole number of packages of an interstate shipment and marks the packages "four sacks short," he is presumed to be liable for the missing packages. (p. 763.)

CARRIERS Connecting Lines-Loss of Freight-Burden of Proof. Evidence showing the amount of freight charges collected, the number of packages shipped, and the initials of the consignor, and that the consignee had bought but one bill of goods of the consignor, casts the burden of proof, as between connecting carriers, on the last carrier, to show that any loss of goods did not occur on its line. (p. 764.)

CARRIERS

- Connecting

Lines-Evidence.-In

an action against the last of connecting carriers to recover for the loss of goods shipped, the bill of lading issued by the first carrier and the bill of the goods shipped are inadmissible, without more. (p. 764.)

CARRIERS, TERMINAL-Evidence.-In an action against a terminal carrier for the loss of goods, the contract of purchase is a collateral matter, and parol evidence is admissible to prove it without producing the written order and its acceptance. (p. 764.)

statute

CONSTITUTIONAL LAW-Interstate Commerce.-A providing that a penalty be paid the consignee by a carrier doing business within the state, for failure to admit and pay a claim for loss of freight while in its possession, within a certain time, is not unconstitutional as an unlawful interference with interstate commerce, even as applied to an interstate shipment. (p. 766.)

Willcox & Willcox and H. E. Davis, for the appellant.

G. Galletly and J. W. Ragsdale, for the appellee.

37 JONES, J. This action was brought in a magistrate court to recover the value of four sacks of rice alleged to

have been shipped from New Orleans, Louisiana, by Martin J. Wynne to the plaintiff at Timmonsville, South Carolina, and to have been lost while in the possession of the defendant carrier, and also to recover fifty dollars' penalty for failure to adjust and pay the claim within ninety days as prescribed by the act of February 23, 1903. The magistrate gave judgment against defendant for the amount claimed, sixty-eight dollars and forty-eight cents, which judgment, on appeal, was affirmed by the circuit court.

We notice, first, appellant's seventh and eighth exceptions alleging error in finding that the rice sued for was lost while in the possession of the defendant, there being no testimony whatever tending to show such fact. The circuit court found that "the defendant presented to and collected from the plaintiff a freight bill for thirty sacks of rice and marked on the bill '4 sacks short,' . . . . that it was warrantable to conclude that the four sacks of rice did come into the possession of the defendant company, for it collected the freight on the four sacks, and 38 declared that the rice was missing. Enough was proven to cast on the defendant company the burden of proving that when the shipment reached its line four sacks were then missing. The defendant alone knew the fact and it did not prove it."

The plaintiff was the only witness examined in the case, and his testimony warranted the conclusion of the circuit court, if his testimony on this point was admissible.

The fifth exception charges that it was error to admit in evidence the freight bill, exhibit "F," on the ground of irrelevancy. It appears from the exhibit that defendant collected from plaintiff thirteen and fifty one-hundredths dollars freight for transporting "30 pkts. Rice," and that the consignor was M. J. W., and that four sacks were short. Plaintiff testified that in August, 1905, he ordered Martin J. Wynne, of New Orleans, to ship thirty bags of rice, and paid him for the same; that he paid the freight for thirty bags, and received only twenty-six. There was no evidence of any other order by plaintiff for rice or shipment of rice to plaintiff during the period involved in the controversy. The freight bill and its payment with this statement indorsed thereon was clearly relevant. It tended to show a single shipment of thirty bags of rice to plaintiff by one whose initials were the same as those of the alleged shipper, and that charge was made by defendant for transporting that number of bags, coupled with an admission that four were

missing. This was at least sufficient to make out a prima facie case of loss while in the possession of defendant, and to cast upon defendant the burden of showing that the loss did not occur on its line: Willett v. Southern Ry., 66 S. C. 477, 45 S. E. 93; Walker v. Southern Ry., 76 S. C. 308, 56 S. E. 952.

The foregoing conclusion renders it immaterial to consider the third and fourth exceptions to the admission of testimony by the magistrate, for it may be conceded that it was error to admit in evidence a bill of lading purporting to be issued by the Louisville and Nashville Railroad Company for thirty sacks of rice, consigned by Martin J. Wynne to 39 plaintiff, without some proof that it was in fact issued to the consignor by an authorized agent, and that it was also error to allow in evidence a bill for thirty packages of rice rendered to plaintiff by Martin J. Wynne, dated August 23, 1905, containing the words "shipped via L. & N. Rd.," being the mere statement of Martin J. Wynne not examined in this case, still the error was harmless as this testimony may be stricken from the record and leave undisputed testimony sufficient to sustain a judgment for the loss of the goods while in defendant's possession. Section 368 of the Code requires that on appeals from magistrate's court, judgment should be rendered according to the justice of the case, without regard to technical errors and defects which do not affect the merits.

The first and second exceptions allege error in permitting plaintiff to testify that he had purchased thirty bags of rice from Martin J. Wynne without producing the written order and acceptance therefor admitted to be in existence. This not being a suit between plaintiff and Martin J. Wynne touching the purchase of the rice and defendant's liability. being dependent, not upon such contract of purchase, but upon its possession for transportation of goods consigned to plaintiff, the contract in question involved merely a collateral matter as to which parol testimony was admissible: Elrod v. Cochran, 59 S. C. 467, 38 S. E. 122.

The ninth exception assigns error in not reversing the judgment of the magistrate for the statutory penalty, after having held that the claim in question arose out of an interstate shipment, and that the penalty statute was invalid as to interstate shipments. What the circuit court really held was that the terms of the proviso of the act of 1903 were invalid in so far as they refer to commerce between the states,

under the authority of Central of Georgia R. R. v. Murphey, 196 U. S. 194, 25 Sup. Ct. Rep. 218, 49 L. ed. 444, but that defendant could not avail itself of the invalidity of this proviso, as the evidence showed that defendant was in possession of the goods lost. In other words, that the penalty 40 statute of 1903 does not violate the interstate commerce law in so far as it applies to the common carriers in this state, in whose possession the goods are lost or damaged.

The Georgia statute, which was condemned in the Murphey case as an unlawful interference with interstate commerce, imposed upon the initial or connecting carrier, as a condition of availing itself of a valid contract of exemption from liability beyond its own line, the duty of tracing the freight and informing the shipper in writing when, where and how and by what carrier the freight was lost, damaged or destroyed, and of giving the names of the parties and their official position, if any, by whom the truth of the facts set out in the information can be established. The distinction between the Georgia statute and our statute, section 1710, is pointed out in Skipper v. Seaboard Air Line Ry., 75 S. C. 276, 117 Am. St. Rep. 901, 55 S. E. 454, 7 L. R. A., N. S., 388, which sustained section 1710 as not violative of interstate commerce.

We are, however, not now to consider the validity of section 1710, but we are to consider the validity of the act of 1903 (24 Stat. 81), as applied to interstate shipments. The statute by its title is "An act to regulate the manner in which common carriers doing business in this state shall adjust freight charges and claims for loss of or damage to freight." Section 2 provides, "That every claim for loss of or damage to property while in the possession of such common carrier shall be adjusted and paid within forty days, in case of shipments wholly within this state, and within ninety days, in case of shipment from without this state, after the filing of such claim with the agent of such carrier at the point of destination of such shipment: provided, that no such claim shall be filed until after the arrival of the shipment or of some part thereof at the point of destination, or until after the lapse of a reasonable time for the arrival thereof. In every case such common carrier shall be liable for the amount of such loss or damage, together with interest thereon from the date of the filing of the claim therefor until the payment thereof. Failure to adjust and pay such claim within the 41 periods respectively herein prescribed shall subject each