Volume 59 — South Carolina Reports

Before Townsend, J., Barnwell, fall term, 1899. Action for negligent killing by Susan T. Elkins, administratrix of Marion Varn, against South Carolina and Georgia Railroad Co. From order sustaining defendant’s demurrer to complaint, plaintiff appeals. No citations on point decided. cite: On point decided: 51' S. C., 55; 18 S. C., 103; 19 S. C., 61; 20 S. C., 583; 30 S. C., 99; 43 S. C., 91; 44 S. C., 485.

<p>Before Benet, J., Sumter, June, 1899'.</p> <p>Action for partition by Susan S. Tindal, individually, and as administratrix of Mary E. Tindal, against John E. Neal, Charles M. Neal, S. Eula McKnight, Chas. L. Cuttino, Thos. P. Cuttino, David W. Cuttino, and S. James Cuttino. The decree is as follows :</p> <p>“The above styled cause was brought to partition a tract of 350 acres of land, more or less, situate in said county and State, and bounded * * * It was alleged in the complaint that this tract of land descended to the parties to this cause as the heirs -at law of Mary E. Tindal, who died intestate seized and possessed of the same; and that the plaintiff, her daughter, is entitled to one-third, and her grand-sons, John E. and C. M. Neal, are each entitled to one-sixth, and that her grand-children, Charles E. Cuttino, Thomas P. Cuttino, S. James Cuttino, David W. Cuttino, and S. Eula McKnight, were each entitled to one-fifteenth. The complaint further alleged that the plaintiff and the defendants were seized and possessed of said tract of land as tenants in common, and owned no other lands in common. The complaint further alleged that the defendant, John E. Neal, was in possession of more than his proportionate share of said premises, and had rented out parcels of said land and collected the rent, and prayed that he be required to account for the same.</p> <p>“The defendants answered, denying the allegations of the plaintiff, that the parties to said action owned no other lands in common, and they "alleged that they, with the plaintiff, were seized and possessed as tenants in common of an additional tract of land situate in the county and State aforesaid, containing ioo acres, more or less, adjoining lands of * * * and that the interests and estates of said parties in that tract of land were in same proportion as those set forth in the complaint in regard to the tract of land therein described. The defendant, John L. Neal, admitted that he was occupying a part of the land described in the complaint, but denied the remaining allegations of paragraph 3 of the complaint.</p> <p>“Subsequent to the commencement of this action the defendant, David W. Cuttino, departed this life intestate and unmarried, leaving as his only heirs at law and distributees the defendants, S. Lula McKnight, Charles L. Cuttino, Thomas P. Cuttino, and S. James Cuttino; and by an order made in said cause the action was continued against the said parties as his heirs at law, and they are now entitled to one-twelfth each in the estate.</p> <p>“There is no controversy as to the tract of land described in the complaint and the interests of said parties therein, and the contention arises as to the tract of 100 acres of land referred to and described in the answers of the defendants. The cause was referred to the master for said county to take and report the testimony, and the master duly filed his report thereof. It appears from the testimony and record evidence taken and proved before the master that one Samuel Perdriau made his will, dated July 15th, 1842, which was duly admitted to probate in said county on October 2, 1843. By the second clause of said will the testator devised his estate to his wife, Esther Perdriau, for life, with right to dispose of one-half by will, etc. The other half of said estate he directed his executors to sell and divide the proceeds, the words of the devise being as follows: ‘The proceeds of said sale of said half of the estate, given as aforesaid to my wife for life, to be divided between Ann M. China, wife of John China, jr., the children of my deceased brother, Peter Perdriau, and also the children of my sister, Esther Wells, alive at the death of my wife, share and share alike, for and during the term of their natural lives, and after their deaths to their respective children forever. It is my will that if the said Ann M. China, either of the children of my brother Peter or sister Esther, should die in my lifetime or the lifetime of my said wife, that the child or children of such one or more of them- as may so die, take the part of their deceased parent.’ At the time of the death of the testator, his brother, Peter Perdriau, and his sister, Esther Wells, were dead; and at the time of the death of Esther Wells, she left surviving her, among other children, her daughter, Mary E. Wells, who married one Charles Eynam some time previous to the year 1832, and the children of the said Mary E. Lynam, Charles Lynam, and Mary A. Lynam, who subsequently married one Neal. And at the death of Mary E. Lynam, who had married one John B. Tindai, her daughter, Susan S. Lynam, then the wife of John M. Tindai, alone survived her, the said -Mary A. Neal having predeceased her mother, leaving as her only heirs at law the defendants, John L. and C. M. Neal; and the said Charles Lynam having also predeceased his mother, Mary E. Lynam (then Tindai), leaving one child, Portia, who intermarried with one T. P. Cuttino. Portia died in 1884, her husband being then dead, leaving the Cuttinos and Mrs. McKnight as her only heirs at law. The said Charles Lynam and his sister, Mary A. Neal, the children of Mary E- Lynam, nee Wells, and grand-children of Esther Wells, were alive at the date of the will, death of the testator, and at the death-of the testator’s wife, Esther, the first life tenant. Susan S. Tindai, nee Lynam, a daughter of said Mary E. Lynam, was born some time after 1837, about 1840, her sister, Mary A. Neal, having been born about 1837. About the year 1852, the'said Mary E. Lynam (who was the daughter of Esther Wells and the second life tenant under the will of the testator) intermarried with one John B. Tindai, and on the 6th day of January, 1852, joined in a marriage settlement by deed executed on that day, and recorded in the office of the clerk of the Court for Sumter County, in book O, at page 327, and thereby conveyed to Richard F. Wells as trustee, among other property, ‘All and singular the undivided interest and estate whatever, real or personal, or both, in remainder, or in expectancy or in presentíof the party of the second part (Mary E. Eynam), under the provisions of the will of Samuel Perdriau, deceased, to the sole and separate use during her life of the party of the second part, and at the death of the party of the second part, she leaving issue alive at her death, all the said last mentioned negroes and her interest as aforesaid under the will aforesaid, shall go to and be vested absolutely in the issue of the said party of the second part in such manner and proportion as the said issue wbuld be entitled under the statutes bf distributions were she to die a widow and intestate.’ In 1851, Esther Perdriau, the widow of the testator, filed a bill in the Court of Equity in said county and State, to obtain the assent of the Court to her relinquishing one-half of the estate passing to her under the will of her deceased husband, Samuel Perdriau, and praying for a sale of that half and for a present distribution of the proceeds among the parties to whom it was bequeathed at the expiration of 'her life estate. A decree to that effect was obtained, to which no appeal was taken except upon a single point, viz: the decree divided the proceeds of sale into three equal parts, one to Ann M. China, one to the children of Peter, and one to the children of Esther, and the contention was that Ann M. China did not take one-third of the proceeds, but should take an equal part with each of the children of Peter Perdriau and of Esther Wells. The Court of Appeals held that they took equally and ‘per capita/ upon the clear reason that the contingency of surviving testator’s wife bore the same relation to Ann M. China as it did to the children of Esther Wells and Peter Perdriau. See the case of Perdriau v. Wells, 5 Rich. Eq., 20. Under the decree in said cause the interests going to the children of Esther Wells and Peter Perdriau were assigned to them, the shares going to the married women being delivered to trustees. The share of Mary E. Eynam was delivered to R. F. Wells, trustee, to be held in accordance with the terms of the will of Samuel Perdriau, the said Richard P. Wells being the trustee named in the marriage settlement between Mary E. Eynam and John B. Tindal. The proceeding above referred to was solely to divide the estate among the life tenants, and none of the children of Mary E. and Charles Lynam (the remainder-men utider said will) were made parties to said cause, although they were in esse at the time. See equity roll, bills 166. In 1880, a petition was filed in this Court by Mary E. Tindal (formerly Eynam) and her daughter, Susan S. Tindal, wherein it was alleged that Richard E. Wells, the trustee aforesaid, had died, and praying that John M. Tindal, the husband of Susan S. Tindal, the petitioner, be appointed trustee in his stead; and further alleging that an action had been previously commenced against the said Richard E. Wells for an account of the trust fund turned over to him as aforesaid; that he had departed this life pending said proceeding, but that a compromise had been effected with his heirs at law, whereby ioo acres of land of his estate should be turned over and delivered to a trustee in full settlement of the trust funds theretofore held by him. The said proceedings referred to in said petition is enrolled as judgment roll 5719 in said county, and the said case was compromised and the land duly turned over and delivered by the heirs at law of said Richard F. Wells to John M. Tindal as trustee, he having been appointed as such by order made under said petition, as appears from judgment roll 2629; and the said John M. Tindal admits in his testimony in this cause that he is in possession of said tract of land as trustee, and has collected the rents, income and profits from the same for a number of years last passed.</p> <p>“I find as a matter of fact from the testimony and from the record evidence proven before the master and heretofore referred to, that the 100 acres of land described in the answers of the defendants herein and sought to be partitioned in this cause, represent the interest arid estate passing under the will of Samuel Perdriati to Mary E. Eynam, afterwards Tindal, for life, and that under the terms of said will said land is now owned by the parties to this cause as tenants in common in the proportions set forth in the complaint in regard to the tract of 350 acres therein described. It appears from the testimony that the 100 acre tract of land is somewhat erroneously described in the answers of the defendants by reason of change of ownership or otherwise of the adjoining proprietors, and the correct description at this time is as follows: * * * The question as to the interest of the defendants in said tract of land turns upon the construction of the will of Samuel Perdriau, and I hold as matter of law that the children of Mary E. Eynam, afterwards Tindal, who were alive at the death of the testator and at the death of his wife, took vested remainders subject to open, if necessary, and let in other children of Mary E. Eynam, who should come into existence; the testator evidently so intended, as he provided in his will against a lapse as follows: ‘It is my will that if the said Ann M. China, either of the children of my brother Peter or sister Esther, should die in my lifetime or the lifetime of my said wife, that the child or children of such one or more of them as may so die, take the part of their deceased parent.’ Thus it follows that if Mary E. Eynam had died during the lifetime of the testator or his wife (the first life tenant), the children of Mary E. (the second life tenant) would have taken a vested interest under the express terms of the will. If the grand-children of his sister, Esther (mother of Mary E. Eynam), were special objects of his bounty and affection, should their parents die in the lifetime of himself or wife, why not equally so should the children of Esther outlive himself and wife and die thereafter? The testator used neither word nor expression to indicate that the estate given under his will should not vest in the grand-children of his sister, Esther, as of the date of the will. He did not use the words ‘surviving children’ or an equivalent expression to indicate that only those grand-children who might survive their parents (the second tenants for life) should take the whole. It would be doing violence not only to the expressed intention of the testator, but to all the springs of human affection, to exclude the grand-children of his sister, Esther, -who were evidently in the testator’s mind at the time he drew his will. By reference to the case of Barnes v. Provoost, 4 Johns., 60 N. Y., as annotated in two leading cases in the American Law of Real Property, page 260, it appears: That the perplexing questions arising in cases of remainders, are those which depend in some way upon a specified contingency or condition, or upon different contingencies or conditions. Where there is no condition or qualification named in the will or deed, the remainder is regarded as vested in the persons to take it; and they become so for the owners of the estate as soon as the time of .vesting arrives, usually the death of the testator, although the time when he was to be entitled to the possession did not arrive before his death. It is only when to the remainder there are attached conditions precedent or events named, which are to happen or fail to happen as precedent incidents, that the discriminating conclusions of Courts are necessary to determine the rights of parties. The vested remainder is that part of the estate bestowed upon one person, to take effect in possession at the close of the interest of another person, with no contingent provision, condition or event intermediate, which can possibly defeat the rights of the remaindermen. A remainder is contingent when the person named to take it may possibly be defeated in his right of property by some event designated and provided to have that effect, or when the persons to take depend upon some contingent event, which is not contingent merely because the time of possession or enjoyment is made to depend upon contingent events. In the first class named there is no contingency as to the person who is to take, but only as to the time when the persons designated are to enjoy or to possess; in the other, the contingency relates to the persons who are to take, etc. It is not necessary that the party named to take in remainder shall be certain ever to enjoy the possession; as, for example, an estate may be conveyed to one for life, with remainder to another in fee. The foregoing principles apply equally and as exacting when a vested estate is limited in remainder to a family of children who may be thereafter born, if one is alive when the testator dies, all succeeding children are let in and vested as of that period; if none are alive, then the remainder vests in the first one born, and all succeeding children become vested as of the time of the birth of the first. And this is the rule in all cases where a remainder is limited to a class of persons. The foregoing principles are gathered from the annotations to the case referred to, the exact language being used in many instances. It is the policy of the law to give to deeds and wills such construction, where permissible, as will effect the early vesting of estates. Boykin v. Ancrum, 21 S. C., 529; Wilson v. McJunkin, 11 Rich., 530; Durant v. Nash, 30 S. C., 192. When the remainder is to persons in esse at the time the limitation is made and upon an event certain, as at the death of a life tenant, it is a vested transmissible remainder in such person. Haynszuorth v. Haynsworth, 12 Rich. Eq., 114. If a devise is to a class as children, at the death of the life tenant, -the remainder is vested in those living at the death of the testator. Rainsford v. Rainsford, Spear Eq., 397; Bvans v. Durant, 1 Strob. Eq., 82; Bentley v. Long, 1 Strob. Eq., 411; Schuler v. Bull, 15 S. C., 432; Bannister v. Bull, 16 S. C., 220; McCreery v. Burns, 17 S. C., 63. Also see 2 Jarman on Wills, 2d Amer. ed., page 54-56. In the case at bar there is no intervening circumstance which was to happen before the grand-children'of Esther Wells could take; they could take immediately upon the death of their parent, an event certain to occur, their enjoyment and possession being alone postponed. There was no intervening circumstance, such as the death of a third party, before the grandchildren could take, but they were entitled to take immediately upon the falling in of the life estates. In 2 Washburn, page 599(2d Amer. ed.), the rule is stated as follows : ‘There is, however, a class of cases where a remainder is regarded as vested, although all the persons who may take are not ascertained or in esse, and cannot be until the happening of some future event. And that is where there is a devise of a remainder to a class of which each member is equally the object of the testator’s bounty, as to “the children” of a person, some of whom are living at the testator’s death. As, for instance, upon a devise to A. for life, remainder to the children of J. S., if J. S. has children at the testator’s death, they would take a vested remainder; and if he were to have other children during the life of A. and before the remainder was to take effect in possession, it would open and let in the children born during A.’s life, who would take shares as vested remainders.’ The same author concludes his discussion of the subject as follows: Tf the limitation be by devise to a class of persons, any of whom are alive and capable of taking at the death of the testator, the enjoyment of which is postponed until after the expiration of a particular estate, the estate will vest in such as are capable of taking at the death of the testator, and will open and let in such of the same class as may come in esse during the continuance of the particular estate.’ Under the subject of Devises and Bequests to Children, in 2d Jarman, at page 54-56 (2 Amer. ed.), the rule is stated as follows: ‘But the question which has been chiefly agitated in devises and bequests to children is, as to the point of time at which the class is to be ascertained, or, in other words, as to the period within which the objects must be born and existent; supposing the testator himself not to have expressly fixed the period of ascertaining the objects, which, of course, takes the case out of the general rule — for example, a gift to children now living — applies to such as are in existence at the date of the will, and those only; and a gift to children living at the decease of A. will extend to children existing at the prescribed period, whether the event happens in the testator’s lifetime (supposing that they survive him) or after his decease. The following are the rules of construction regulating the class of objects entitled in respect of period of birth under general gifts to children: ‘First, that an immedíate gift to children (i. e., a gift to take effect in possession immediately on the testator’s decease), whether it be to the children of a living or a deceased person, and whether the children simply or to all the children, and whether there be a gift over in the case of the decease of any of the children under age or not, comprehends the children living at the testator’s death (if any), and those only; notwithstanding some of the early cases which make the date of the will the period of ascertaining the objects. It is scarcely necessary to observe that this and the succeeding rules apply to issue of every degree as grand-children, great-grand-children, etc., though cases to the contrary are to be found, especially at an early period. Secondly. That where a particular estate or interest is carved out with a gift over to the children of the person taking the interest or the children of any other person, such gift will embrace not only the objects living at the death of the testator, but all who may subsequently come into existence before the period of distribution. Thus in the case of a devise or bequest to A. for life, and after his decease to his children, or (which is a better illustration of the limits of the rule, since, in the case suggested, the parents being the legatees for life, all the children who can ever be born necessarily come in esse during the preceding interest), to A. for life, and after his decease to the children of B., the children (if any) of B. living at the death of the testator, together with those who happen to be born during the life of A., the tenant for life, are entitled, but not those who may come into existence after the death of A. The rule is the same where the life interest is not of the testator’s own creation but is anterior to his title. In cases falling within this rule, the children, if any living at the .death of the testator, take an immediately vested interest in their shares subject to the diminution of those shares (i. e., to their being divested pro tanto), as the number of objects is augmented by future births during the life of the tenant for life; and, consequently, on the death of any of the children during the life of the tenant for life, their shares (if their interests therein is transmissible) devolve to their respective representatives; though the rule is sometimes inaccurately stated, as if existence at the period of distribution was essential.’ The author cites Mathews v. Paul, 3 Swanst., 339, and Houghton v. Whitgreave, 1 Jac. & Walk., 150, as cases where the rule was inaccurately stated. In support of the foregoing propositions, see also 20 Amer. and Eng. Ency. of Law, 854; 29 Amer. and Eng. Ency. of Law, 411; 2 Washburn on Real Property, 603. In Gourdin v. Deas, 27 S. C., 484, the rule is stated by the Chief Justice as follows : ‘The authorities in this State appear to be somewhat conflicting, but it seems to us that the more recent cases support the view that the remainder is vested in such of the issue as were in esse at the date of the deed, at that time, opening to let in other issue as they came into existence.’ The same principle was announced in Schuler v. Bull, 15 S. C., 231; McCreery v. Burns, 17 S. C., 45; Bankhead v. Carlisle, 1 Hill Ch., 357. In Brown v. McCall, 44 S. C., 503, the Chief Justice quotes with approval the language of Ch. Harper in the case of McMeekin v. Brummet, 2 Hill, 638: ‘So if these slaves had been given to comfort Terry for life, remainder to the sons of Spencer and Daniel Brummet, I take it to be equally clear that there would have been a vested remainder in the sons of Spencer and Daniel Brummet who were living at the time of the gift.’ If, therefore, the ‘sons of Daniel and Spencer Brummet who were living at the time of the gift,’ took vested remainders, the children of Mary E. Lynam who were alive at the time of the devise in the case at bar, also took vested remainders. The word children designates a class no less perfectly than the word sons. 20 Amer. and Eng. Ency. of Law, supra In Crosby v. Smith, 3 Rich. Eq., 254, thé point of the decision is clear that the Chancellor treated the devise to the children of the testator as a class, and held that those who were in esse,a.t the time of the testator’s death took vested remainders, which upon their dying in the lifetime of the tenant for life were transmitted to their representatives and not to the surviving children. See also Crim v. Notts, 4 Rich. Eq., 340; William v. Holmes, 4 Rich. Eq., 475 i Wilson v. Mc-Junkin, ix Rich. Eq., 527; Bentley v. Long, 1 Strob., 43; McGregor v. Toomer, 2 Strob. Eq., 51; Key v. Weathersbee (mss. March 29, ’95), 43 S. C., 423; Gourdin v. Deas, 27 S. C., 484; 4 Kent Comm., 197. In all these authorities the same principle is affirmed, viz: That the children in esse, when the instrument took effect, i. e., the death of the testator in the case-at bar, took vested transmissable remainders, opening to let in all other children who come into existence before the falling in of the life estate. The'following cases in South Carolina may appear to be in conflict with rules hereinbefore announced, but a careful anaylsis of them will show that such is not the case: Myers v. Myers, 2 McC. Ch., 256 (1827). In that case the effort was to include in the division children who were born subsequent to the death of the life tenant, or born subsequent to the period fixed for distribution, and it was held that they were not entitled. Throughout the entire case the doctrine of vested remainders in those children in esse at testator’s death and in those born afterwards and before the period for distribution, seems to have been conceded. Swinton v. Legare, 2 McC. Ch., 440 (1827). In that case the representatives of the children who died in the lifetime of the life tenant were excluded, because by the express terms of the devise the remainder was limited over to the ‘surviving children,’ and hence the remainder was contingent. Cole v. Creyón, 1 Hill Ch., 311 (1833). This case was reviewed in Gourdin v. Deas, 27 S. C., supra, and Brown v. McCall, 44 S. C., supra, and was held to have decided only two points, viz: (1) that the application for partition was premature, as the time fixed by the will for distribution had not arrived: (2) that the division should be per stirpes and not per capita. In both Gourdin v. Deas and Brown v. McCall, Chief Justice Mclver cites with approval the remarks of Chancellor Harper in Cole v. Creyón, ‘there would be reason for making a different construction, and probably a different one ought to be made, when the child djdng before the time fixed for distribution has left children; and this also to effectuate the intention; for it cannot be supposed that testator intended the object of his bounty not to be capable of transmitting to his children so as to provide for them.’ Cole v. Creyón thus becomes an authority sustaining the contention of the defendants in the case at bar; the discussion there did not relate to a case like the one at bar, but simply as to what portions of an estate would vest in an individual on the one hand and a class on the other. Connor v. Johnson, 2 Hill Ch., 41 (1834). The real question decided in this case was that the division should be per stirpes and not per capita. Subsidiary to that question was the further one, as to what should become of the shares of the remaindermen who died in the lifetime of the life tenant leaving no issue, and it was in substance held that the remainders were divested by the express terms of the will, which provided that in case any of the children should die in the lifetime of the life tenant leaving ‘no issue,’ then their shares should go over. It was upon a similar principle that the case of Brown v. McCall, supra, was decided, in which case Connor v. Johnson was also reviewed. Should the case of Connor v. Johnson be found in conflict with the contention of defendants herein, yet it will be remembered that it is one of the cases referred to in Gourd-in v. Deas, supra, by name, where it was held that these old cases were controlled by the more recent cases sustaining a different doctrine, viz: that a devise to a class, as children, constitutes a vested remainder in all of the class in esse at testator’s death, opening to let in other children born before the period fixed for distribution and for the enjoyment of the estate in remainder. Lemacks v. Glover, 1 Rich. Eq., 145. The question involved in that case is not involved in the case at bar, although the Chancellor, quoting from Mathews v. Paul, 3 Swánst., 339, does say: ‘In all cases of legacies payable to a class of persons at a future period, the constant rule has been that all persons coming in esse, and answering the description at the period of distribution, shall take; and the same rule must be applied to persons excluded.’ It will be observed that the case of Mathews v. Paul is one of the two cases in which Jarman says, supra, ‘that the rule is sometimes inaccurately stated, as if existence at the period of distribution was essential.’ It is remarkable how an erroneous statement of the rule, as in Mathews v. Paul, becomes perpetuated by reference thereto without due examination. Lemacks v. Glover cannot be regarded as a decision adverse to the defendants herein. Deveaux v. Deveaux, i Strob. Eq., 283. The point decided there was, that children coming in esse after the period fixed for distribution could not be included with those in esse at testator’s death, or who were born before the period fixed for distribution, following Myers v. Myers, supra. Dickson v. Dickson, 23 S. C., 216. In that case it was held that ‘the interests of the three sons were not vested but contingent, by reason of the fact that they were dependent upon the uncertain event of Amelia’s dying without issue.’ That is the only .point decided in the case, although it is true that the Circuit Judge and Chief Justice Simpson did casually discuss the doctrine of a devise to a class; the Chief Justice stating, without quoting any authority for the statement except Jar-man (which has been shown not to apply here), ‘There'is a class of cases in which, when property is given by will to be distributed among a class of persons at some future time or on some future contingency, all are let in who come into existence before the time of the happening of the event; provided, they be in existence at the happening of said event, and no one but such as may be in existence at that time can take.’ The statement of the Chief Justice was obiter dictum, being in no way necessary to a decision of the case, and Jarman does not sustain the position there taken by the Chief Justice; on the contrary, he lays down the rule, that a devise to a class is ‘a gift to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time.’ They are uncertain in number, because subsequent births before the period of distribution let in after-born children; hence the number is uncertain until the death of the life tenant; the quantity each child is to take is uncertain, but the quality of the estate is fixed and not uncertain; it is a vested remainder in those in esse at testator’s death, opening to let in after-born children, who, eo instanti, take vested interests in remainder. This is distinctly laid down by Jarman, at page 54, supra. It is thus.seen that Dickson v. Dickson is not in conflict with the contention of the defendants. The idea which seems to have been in the mind of Chief Justice Simpson, that only those children alive at the death of the life tenant should take, was probably derived from the case of Wessinger v. Hunt, 9 Rich. Eq., 459, which in Hayne v. Irving, 25 S. C., 289, is said ‘to have established the doctrine that a bequest to be distributed at a future time to the death of the testator, to wit: at the death of an intermediate life tenant, all who answer to the description at the time of the distribution are the parties alone entitled.’ But Chief Justice Mclver, in Gourdin v. Deas, supra, points out that Wardlaw, Chancellor, does not use the word ‘alone’ in the case cited; but, on the contrary, he held that ‘the representatives of a child who had predeceased the life tenant were entitled to share in the estate.’ It will thus be seen that the idea that only those children in existence at the death of the life tenant can take, to the exclusion of those who, although in esse at testator’s death, yet die in the lifetime of the life tenant, is erroneous; on the contrary, the error in Dickson v. Dickson and Hayne v. Irving, is the same error that was pointed out by Chief Justice Mclver, as supposed to have been derived from Wessinger v. Hunt, and is also the same error derived from Mathews v. Paul, 3 Swanst., supra. Clark v. Clark, 19 S. C., 345. The devise was to William Clark for life, at his death to his children (there being two or them) and then to their children living at his death. One of the two children, Mrs. Sherwood, died after the making of the will but before the testator, and hence took nothing; and it was held that by the express terms of the will that the share she would have taken passed to her children as purchasers by substitution. In the course of the opinion, Mr. Justice McGowan does say, that ‘if a testator gives a legacy to be divided among the children of A. at a particular time, those who constitute the class at the time will take;’ and cites Cole v. Creyón and Szvinton v. Legare, supra — but those cases do not support the doctrine claimed, and besides the statement was obiter dictum. Mrs. Sherwood had died before the testator and before the will took effect. Moreover, the statement of Justice McGowan was not inconsistent with the rule here, because the contention is that the children of Mary E. Eynam (Tindal) were of the class at the testator’s death, which was the time that the will took effect, and hence took vested remainders, the enjoyment being merely postponed until the death of the life tenant. Shanks v. Mills, 25 S. C., 362. The point decided in this case was in the following language of Mr. Justice McGowan: ‘The devise over, in this case, by its express terms, was to take effect at the time of the death of Christina, and was limited to her children who may be then living.’ This was a clear case of a contingent remainder, excluding, of course, the representatives of a predeceased child. Brown v. McCall, 44 S. C., 503. The only point decided in that case was that by the express terms of the deed of settlement the Berry children took a fee defeasable upon dying leaving issue; and that, therefore, where one of them died in the lifetime of the life tenant leaving issue, such issue by the express terms of the deed, took by way of substitution as purchasers.</p> <p>• “I, therefore, conclude, as matter of law, that Mary E. Eynam, afterwards Mary E. Tindal, took a vested remainder in fee simple in the interest passing to her under the will of Samuel Perdriau, and that -by virtue of the terms of the marriage settlement aforesaid, and of the law of the land applicable to this case, her issue now own and possess such interest; and it is adjudged, that the parties to this cause own and possess the lands described in the complaint and the tract referred to in the answers as tenants in common, their interest therein being as follows: Susan S. Tindal, the plaintiff, one undivided third part of the whole; John E. Neal and Charles M. Neal, one-sixth part each of the whole; and S. Eula McKnight, Charles E. Cuttino, Thomas P. Cuttino, and S. James Cuttino, one-twelfth part each of the whole of said lands. The plaintiff being in possession of the tract of ioo acres of land, should account to the defendants for the income, rents and profits thereof, and any of the defendants in possession of any part of the tract of 350 acres should account for the income, rents and profits of the same.</p> <p>“It is, therefore, ordered, that it be referred to the master for Sumter County to take testimony and report as to the rents, income and profits accruing from said premises, and also to take testimony and report whether partition in kind among the parties be practicable or expedient; and upon the filing of the master’s report, either of the parties hereto have leave to apply for such further orders as may be necessary to effectuate the purport of this decree.”</p> <p>From Circuit decree, plaintiff appeals.</p> <p>cite: As to the construction of the zvill: 5 Rich. Eq., 20; 44 S. C., 515; 1 Hill Ch., 357; Dud. Eq., 201; 1 Strob. Eq., 43; 12 Rich. Eq., 114; 33 S. C., 216; 9 Rich. Eq., 570; 1 Hill Ch., 311; 2 Hill Ch., 41; 23 S. C., 216; 2 DeS., 300; Bail. Eq., 7; 1 Strob. Eq., 84; 19 S. C., 350.</p> <p>The former cite: As to the construction of the will: 21 S. C,, 529; 11 Rich. Eq., 530; 2 S. C., 78; 72 U. S., 268; 30 S. C., 192; Dud. Eq., 204; McM. Eq., 204; 4 Rich. Eq., 285; 20 S. C., 75; 12 Rich. Eq., 114; Spear Eq., 397; 1 Strob. Eq., 82, 411; 15 S. C., 432; 16 S. C., 220; 17 S. C., 63; 9 Ves., 233i 73 U. S-, 458; 3 Pet., 376; 4 Pet-, 1; 8 How., 495; 43 S. C., 414; 27 S. C., 484; 15 S. C., 421; 1 Hill Ch., 357; 2 Hill Ch., 638; 44 S. C., 503; 3 Rich. Eq., 254; 4 Rich. Eq., 340, 475; 1 Strob. Eq., 43i 2 Strob. Eq., 51.</p>

Before Townsend, J., Hampton, January, 1900. Action for dower by C. E. Bostick against W. D. Barnes, J. W. Sanders and Jackson Smart.

Before Gage, J., Charleston, November, 1899. Action by Pope Manufacturing Co. against The Charleston Cycle Co. Prom order refusing motion by plaintiff to strike out certain parts of defendant’s answer, plaintiff appeals. cite: Debts to be set off must be mutual: 2 Bay, 146; 1 McC., 7; 3 McC., 249; Cheves, 50. Same rule under Code: 21 S. C., 200; 30 S. C., 128; 33 S. E. R., 791. The matter set up constitutes a counter-claim: 30 S. C., 115; 42 S. C., 28; Code, 176.

Before Townsend, J., Charleston, September, 1899. Action by William P. Humphrey, trustee, against Mary Bennett Campbell, Cecil Campbell Higgins, in his own right and as executor and trustee under the will of Mary Butler Campbell, Susan Rush Higgins, William Austin and The Home for the Mothers, Widows and Daughters of Confederate Soldiers of Charleston, S. C. Prom Circuit decree, confirming report of master, the latter named defendant appeals.

Before Kl/ugh, J., Greenville, December, 1898, and Gary, J., November, 1899. Action by Nannie B. Morgan and Hardy Smith against Beauregard Smith, H. T. Stroud, executor of H. M. Smith, Piedmont Savings Company, and The Peoples Bank. Defendant Smith appeals from both Circuit decrees. cite: As to appeal from intermediate order: 13 S. C., 254; ' 44 S. C., 536; Code, 11; 28 S. C., 571; 32 S. C., 317; 36 S. C., 173.

Before Aldrich, J., Fairfield, March, 1900. Proceeding to enforce an agricultural lien by B. M. Blair against G. B. Morgan. From Circuit order refusing motion to vacate warrant of seizure, lienor appeals. cite: Affidavits must be Med within forty-eight hours: Rev. Stat., 2519; 46 S. C., 42; 50 S. C., 380; 32 S. C., 158.

Before Ardrici-i, J., October, 1899. Motion by Orna S. Amick against Simon Amick and Henry D. Taylor. From Circuit decree, refusing motion, the movant appeals. cites: As to leave to issue execution: Code, 310; 37 S. C., 517; Code, 309, sub. 2. As to the certificate as to purchase money contract: Con., sec. 28, art. III.; Rev. Stat., 2133; 33 S. E. R., 501; 17 S. C., 490. cite: As to leave to issue execution: Code, 309. Not purchase money contract: 8 S. C., 87.

<p>1. Attorney and Client — Demand—Pleadings—Demurrer.—Failure to allege demand on attorney for payment of money collected by him for his client, is good ground for demurrer to complaint in action for same.</p> <p>2. Privity — Pleadings—Demurrer—Money Had and Received.— Complaint for money had and received by defendant for plaintiff need not allege privity between the parties.</p> <p>3. Amendment of Complaint — Appeal.—Refusal of motion to amend complaint by alleging demand, held error and reversed because Judge put it on legal ground held not tenable.</p>

Before Gage, J., Charleston, December, 1899. Action for damages for negligent killing by William C. Nohrden, administrator of Harold William Nohrden, against Northeastern Railroad Co. From judgment for plaintiff, defendant appeals. 'So much of the charge as is questioned by the exceptions is as follows: Gentlemen of the jury: Before I proceed to deliver to you my charge in this case, I will direct my attention to the requests to charge made, first by the plaintiff, and…

Before Townsend, J., Spartanburg, February, 1899. Account by Geo. B. Dean, sheriff, against county of Spartanburg for dieting prisoners. From Circuit decree sustaining action of county supervisor and his board, plaintiff appeals. cite: 56 S. C., 400; 22 Stat., 226, 494; sec. 34, art. III., Con.; 51 S. C., 51. cite: 22 Stat., 739; 39 S. C., 5; 37 S. C., 558; árt. III., sec. 17, Con., and sec. 34; 50 Mo., 317.

Before Watts, J., Spartanburg, November term, 1899. Action for damages for trespass on land by Harriet L,. Connor against Crede F. Johnson. From judgment for plaintiff, defendant appeals. So much of the charge as is questioned by the exceptions is as follows: “Mr. Foreman and Gentlemen: This is a claim brought by the plaintiff here to recover damages against the defendant for interfering with the possession of land.

Before Townsend, J., Hampton, January, 1900. Action for possession of real estate by Pierre Robert, Jeanie May Jones, and John H. Robert against L. D. Ellis. The agreed statement of facts upon which the case was heard is as follows: “That John H. Robert died on the day of May, 1897, leaving as his sole surviving children and heirs of his body the plaintiffs, Pierre Robert, Jeanie May Jones and John H. Robert.

Before Aedrich, J., Sumter, March, 1899. Action for possession of interest in land and partition by John A. Garrett et al. against Rosa Weinberg et al. From judgment for defendants, plaintiffs appeal. cite: Title to land cannot be proved by common report: 48 S. C., 477; 26 S. C., 231.

Before Watts, J., Greenville, March, 1900. Action on fire insurance policy by Augusta A. Simpson et al. against South Carolina Mutual Insurance Co. From judgment for plaintiffs, defendant appeals. No citations on point considered. No citations on point considered. The opinion of the Court was filed September 28, but remittitur stayed until

<p>Motion by respondent in L. S. Barwick, plaintiff, respondent, v. W. D. Barwick, defendant, appellant, to dismiss appeal.</p>

<p>Before Watts, J., Oconee, March, 1900.</p> <p>Indictment against W. K. Powers for murder of J. T. Richey. From sentence, defendant appeals on exceptions hereinafter set out. The order of Judge Gary, in question, after quashing the venire for the grand jury for 1899, is as follows: • -</p> <p>“It having been held by the Court at this term, in the case of the State v. W. K. Powers, from the facts developed on the motion to quash in that case, that the grand jury drawn in January, A. D. 1899, was not selected and placed in the jury box in accordance with the act of General Assembly in such case provided, and sik of the panel thus drawn having been selected by ballot to serve for another year. Now, in consideration of the fact that the names of said six grand jurors were not properly selected and placed in the jury box and are not, therefore, legal grand jurors, it is, therefore, ordered, that the jury commissioners of the county of Oconee, when drawing the grand jurors for the year 1900, do draw the names of eighteen persons to- serve as grand jurors for the year 1900. It is further ordered, that the clerk of this Court do serve a certified copy of this order on the county commissioners of Oconee County.”</p> <p>The following are defendant’s grounds of appeal:</p> <p>“I. Because his Honor erred in refusing defendant’s motion to quash the venire for grand jurors, when it appeared that said venire on its face called for the drawing of eighteen grand jurors instead of twelve, as provided by law.</p> <p>“II. Because his Honor erred in refusing the motion to set aside the panel of grand jurors and to quash the indictment, when it appeared from an inspection of the original writ of venire that there was no return of the sheriff that said writ had been served upon the jury commissioners, and when it appeared that there was no proper evidence that the grand jurors named in the panel of -the writ had been duly summoned.</p> <p>“HI. Because 'his Honor erred in refusing defendant’s motion to’ quash the indictment because the bill of indictment was found by an unlawfully selected and drawn grand jury, and is, therefore, void for the following reasons: r. Under the law, the present grand jury should be composed of six of the last panel of the grand jurors, selected and drawn as the law directs, and twelve other good and lawful men, selected and drawn as provided by law; whereas, it is composed entirely of eighteen new men, none of whom were grand jurors for the year 1899. 2. At the time of the</p> <p>selection of the names of jurors to be placed in the jury box and the making up of the annual list of jurors in January of this year, at the time of the drawing of the present grand jury, there was no law of force providing or prescribing the manner of selecting and drawing jurors, and any selection and making up by the county board of commissioners of the annual jury list from which the grand jurors were drawn, was without authority of law, and is, therefore, null and void.</p> <p>“IV. Because his Honor erred in refusing to quash the indictment because it does not conclude the count for murder without the words, ‘Against the peace and dignity of the State,’ as required by our Constitution.</p> <p>“V. Because his Honor erred in refusing to sustain defendant’s challenge to the array of petit jurors, which was based upon the following grounds, to wit: That the present array of petit jurors were drawn by the jury commissioners from the annual list of jurors selected and prepared by the county board of commissioners under and by virtue of the provisions of sections 2375 and 2376 of the Revised Statutes of 1893, as amended by an act entitled ‘An act to amend sections 2375, 2376 and 2402 of volume I., Revised Statutes of 1893, approved 9th March, 1896,’ which sections were specifically repealed by section 9 of an act entitled ‘An act to amend an act to provide for the county government of the various counties in this State,’ approved Gth March, 1899; and as said sections have been repealed and nothing substituted therefor, 'there was in January last no law prescribing •the method of preparing the annual jury list, the number of names to be placed in the jury box, the qualification of jurors when they are to be drawn, &c.; and that the action of the county board of commissioners in selecting the names to be placed in the jury box and in making up the annual jury list, was without authority of law and is void.</p> <p>“VI. Because 'his Honor erred in not holding that the petit jurors had been unlawfully selected and were not legal jurors.</p> <p>“VII. Because his Honor erred in refusing defendant’s request to charge as follows: ‘Should a reasonable doubt be entertained by one juror, the defendant cannot be found .guilty.’</p> <p>“VIII. Because his Honor refused the following request to charge: ‘A reasonable doubt is an impression after a full comparison and consideration of all the evidence that does not amount to a certainty that the charge against the accused is true.’ ”</p> <p>The former cites: Writ of venire is not in conformity to the law: 22 Stat, 419; Rev. Stat., 2399, 2400; 15. Rich. R., 42, 47. As to summoning jurors: 44 S. C., 346. Preparation of jury lists ivas illegal: 22 Stat., 16. As to the conclusion of the indictment: Con., art. V., sec. 30; 27 S. C., 620; Con., art. I., sec. 29. As to reasonable doubt by one juror: 52 la., 284; 34 Kan., 488; 104 Ind., 359; 89 Ind., 235; 75 Ind., 146; 42 Ind., 420; 32 Cal., 433. •</p>

<p>Motion to dismiss appeal in case of The American Publishing and Engraving Co. vs. W. H. Gibbes & Co.</p>

<p>Before Buchanan, J., Laurens, February, 1900.</p> <p>Proceeding in probate court for -dower by Nancy Steen v. James W. Fowler, B. C. Burns, John A. Owens and W. A. Burns. From Circuit order affirming pr-obate judgment in favor of demandant, respondents appeal on following exceptions :</p> <p>“I. Because his Honor, Judge O. W. Buchanan, erred in affirming the judgment 'below without considering or passing upon the exceptions to the same.</p> <p>“II. ,Because he erred in holding that the testimony was sufficient to show that Thomas Steen was seized and possessed of the tract of land described in the petition during coverture with the petitioner.</p> <p>“HI. Because he erred in holding that the rule of caveat emptor did not apply in this proceeding.</p> <p>“IV. Because he erred in .'holding that the books of Sheriff Arnold were competent testimony.</p> <p>“V. Because he erred in holding that the entries in said books were competent testimony without showing that they were made by Sheriff Arnold, or by his direction.</p> <p>“VI. Because he erred in holding that said books and entries were competent testimony of seizin and title in Thomas Steen to land sold by the sheriff.</p> <p>“VII. Because he erred in 'holding that in the absence of proof of possession it was not necessary to show a legal title in the husband in order to establish a seizin.</p> <p>“VIII. Because he erred in bolding that the rules of evidence as to establishing title did not apply to a proceeding in dower.”</p> <p>cites: Entries in sheriff’s book not competent to show that demandant’s husband ever owned the land: 2 McC., 388; 50 S. C., 218. When possession is not shozvn, legal title in husband must be shozvn as in other cases: 25 S. C., 337.</p> <p>'The former cite: Demandant in dower is only required to make out her case by slightest and lowest order of proof: 22 S. C., 45; 24 S. C., 121; 3 Rich. L., 66; 2 Mills, 59; 5 Rich., 526, 277; 1 Bail. L-, 77. Entries in sheriff’s book assumed to have been properly made: 50 S. C., 238.</p>

Before Aldrich, J., Laurens, February, 1900. Judgment against Will Switzer, charging him with misdemeanor for turning oil out of a tank by disconnecting pipes. From Circuit order quashing indictment, State appeals. c-ites: Criminal Code, 165, and as to its construction: 3 McC., 306; 2 Cranch, 335; 2 Strob., 474- Oral argument.

Before Watts, J., Charleston, June, 1900. Indictment against Edward McClenton for carrying concealed weapon. From order sustaining judgment of magistrate, defendant appeals. cites: Crim. Code, 19, 22 Stat., 423. Oral argument.

Before Aldrich, J., Greenwood, August, 1900. Indictment against William Anderson for stealing a cow valued at $15. From judgment in Sessions Court, defendant appeals. cite: As to challenges: 30 S. C., 69. As to the establishing of the defense of alibi: 18 S. C., 520; 36 S. C., 487.

Before Gage, J., Greenwood, April, 1900. Action in claim and delivery by E. B. Norris, executor of Jane Estelle Clinkscales, against A. J. Clinkscales and T. E. Clinkscales, jr. Erom judgment for defendants, plaintiff appeals on the following exceptions, respectfully submitting that his Honor erred in the following particulars: “I. In holding and ruling that the Court of Common Pleas for Abbeville County has not jurisdiction of the defendants, and th'at said county of…

Before Buchanan, J., Union, January, 1900. Action in magistrate court -by Samuel Sims against Southern Railway Oo. for damages for negligently killing a horse. From order on Circuit affirming magistrate judgment, -defendant appeals on following exceptions : “1.

<p>Before Hudson, special Judge, Barnwell, March, 1900.</p> <p>Action on account by T. M. Cave against W. V. Gill. From Circuit order overruling demurrer, defendant appeals.</p> <p>cites on main question: Code, 163; 18 S. C., 469; 33 S. C., 216; 5 S. C., 5; 35 S. C., 307; 28 S. C., 388; 34 S. C., 62; 7 N. Y., 478; 10 N. Y., 363; 8 How., 85. Pleadings must be construed strongly against the pleader: 12 S. C., 1, 576; 25 S. C., 123; 37 S. C., 520.</p> <p>No argument.</p>

Before BenET, J., Richland, April, 1900. Indictment against W. A. Neal in the following words: “At a Court of General Sessions, begun and holden in and for the county of Richland, in the State of South Carolina, ai Columbia Court House, in the county and State aforesaid, on the third Monday of October in the year of our Lord 1899.

Before Watts, J., November, 1900. Claim of Edward H. Houser against Orangeburg County for traveling expenses as county'superintendent of education. From Circuit order reversing decision of county -board of commissioners and allowing the claim, the county appeals. cites: 20 Stat., 1114; 21 Stat., 492; 22 Stat.', 156, 504, 759; 23 Stat., 107. cites: Rev. Stat, 1057; 21 Stat., 492; 22 Stat., 759.

<p>Before Gage, J., Barnwell, March, 190a.</p> <p>Action for personal damages by Charles Wright, by his guardian ad litem, against Charleston and Western Carolina Railway Co. From order refusing new trial, the defendant appeals. '</p> <p>cite:-19 S., C.,.582;. 11 S. C., 591; Gen. Stat., 213; 1 Bail., 479. ■</p> <p>cites: 36 S. C„ 585; 11 S. C., 222, 590; 20 S. C., 150; 24 S. C., 593; i.S. C., 114; 3 S. C., 254; 8 S. C., 173; 57 S. C., 288; 19 S. C„ 580.</p>

Before Watts, J., Anderson, March,- 1900. Indictment against Thomas Prater, Lou Prater and Thomas Hallums,. in .the following words, omitting the formal parts: . ... “That Thomas Prater, Lou Prater and Thomas Hallums, at Anderson Court House, in the county of Anderson, and State aforesaid, on the 20th day of March, in the year of our Lord 1899, and.on divers other days, both before and since that day, up to the taking o’f this inquisition, wilfully and unlawfully did sell,…

Before Aldrich, J., Spartanburg, May, 1900. Action by M. L,. Zimmerman against Southern Railway Co., for damages for negligently killing a cow. From Circuit order sustaining judgment of magistrate, defendant appeals. cite: Light on railroad track not sufficient to warn employees of reason for stopping train: 57 S. C., 252. Stock law being in force, engineer had right tor presume cattle would be confined: 29 S. C., 160.

Before Buchanan, J., Pickens, July, 1900. Five actions by P. E. Linnel against the defendants, Rasaline Hudson, E. J. Evans, B. E. Johnson, Sarah E. Monroe, and M. B. Duncan, individually.

Before Aedrich, J., Lexington, September, 1899. Indictment for murder against Clarence Clyde Whittle and Willis D. Berry. From judgment of Sessions Court, defendants appeal on following exceptions : “I. Because his Honor erred in charging -the jury as follows : ‘In manslaughter, the killing is done without malice aforethought, either expressed or implied.

Before Gary, J., Charleston, April, 1900. Action for damages to personal and real property by Betty Herskovitz against W. J. and Isaac Baird. Judgment for plaintiff. Now trial ordered. Plaintiff appeals from latter order. cite: Rule XI., C. C. C.; 29 Minn., 357; 50 S. C., 425; 31 S. C., 510. cite: 14 S. C., 385; 1 Rich., 113; 4 Rich. Eq., 91; 20 S. C., 204; 47 S. C., 116; 26 S. C., 388; 50 S. C., 54; 46 S. C., 218; 31 S. €., 527; 39 S. C., 108.

Before BenLT, J., Lexington, February, 1900. Action for damages for personal injury to Nancy Easier, by herself and her husband, J. P. Easier, against Southern Railway Co. From judgment for plaintiff, defendant appeals. cite: As to first exception: 19 S. C., 521; 32 S. C., 128; 25 S. C., 24; 57 S. C., 445. As to second, third and fourth exceptions: 15 S. C., 403; 44 S. C., 341; 13 N. Y., 657; 95 U. S., 297; 69 Mo., 305; 23 N. Y, 42; 34 S. €., 36.

<p>Before Gage, J., Barnwell, March, 1900.</p> <p>Pour actions for possession of lands by A. M. Kennedy against L. T. Roundtree, W. H. Eaves, Pee Powell, and Dora Baldwin. Prom judgment of nonsuit, both parties appeal.</p> <p>cites: As to levy: 8 Rich., 454; 1 McC., 53; 37 S. C., 115.</p> <p>appellants. Mr. Allen J. Green cites: This contest not between purchaser and judgment debtor: 1 Mill, 323. Bssentials in making out a case of this kind: 1 McM., 377; Rev. Stat., 2114; 53 S. C., 380. Sheriff’s deed not admissible in evidence, because had not necessary revenue stamps: War revenue act., pp. 9, 15; Nos. 19746 and 19839, compilations of decisions 'by commissioner of internal revenue.</p>

Before Watts, J., Greenville, April, 1900. Action by Lewis W. Parker against Joseph P. Latimer and John H. Latimer. From judgment for plaintiff, defendants appeal. cite: Every action must be prosecuted by real party in interest: Code, 132; 6 S. C., 184. No evidence of notice of assignment to plaintiff before settlement by defendants, and new trial should be granted: 57 S. C., 280.

Before Buchanan, J., York, November, 1899; Appeal, by plaintiff from order on Circuit confirming taxing by the clerk as a disbursement for printing “points and authorities” on former appeal in Margaret A. McElwee against Eliza J. Kennedy et al. The former cite: Code, 326; 48 S. C., 494; 45 S. C., 89.

<p>Before Benet, J., Saluda, June, 1900.</p> <p>From order on motion to correct taxation of master’s commissions in Patia A. Bryan et al. against B. R. Ream et al., parties to this suit appeal.</p> <p>cites: Rev. Stat., 2548; 22 Stat, 429; 44 S. C., 500; Rev. Stat., 2553; 27 S. C., 15; 2 Bail. R., 554; Rev. Stat, 2557; Harp. R., 326; 6 Rich. R., 106; 3 Mc'C. R., 25 ; 1 McM., 97; 1 Rich., 209; 5 Stat., 161; 7 Stat., 264; Rev. Stat., 2561; 19 S. C., 17; 24 S. C., 459;-16 S. C., 62; Rev. Stat., 2547; 4 Rich. R., 608; 24 S. C., 540; 44 S. C., 174; Rich. Eq. Cases, 227; 24 S. C., 457.</p>

<p>Before Gary, J., Charleston, May, 1900.</p> <p>Action for specific performance.by Mary Maccaw against Louisa A. Crawley. The following is the report of - Master Sass: ■</p> <p>“This case was referred to me -by. an order of this Court,' filed 20th December, 1899, -‘to take testimony and report upon all the issues of law and of fact involved in the pleadings, with leave to report any special matter.’ T respectfully report: I have been attended by counsel, have held references and taken testimony, which is-hereto annexed. 'This is an action for the specific performance of a contract for the purchase of the premises No. 37 Legare street, Charleston, S. C. The complaint alleges that the plaintiff was, on and before the 6th day of November, 1899, the owner in fee simple of the premises described; .that on that day-the defendant entered into an agreement in -writing with the plaintiff to purchase said premises on the following terms, to wit: $3,000 cash, with one-sixth of the State and county taxes for the year 1899, and $25 for papers; that plaintiff is ready to perform the agreement on her part, has tendered- a deed of conveyance, and defendant has refused to accept the same. The prayer is that defendant perform said agreement and pay to the plaintiff the said purchase money. The answer of the defendant admits the agreement, but denies that the plaintiff has and can convey a good title to the premises. The issue is upon the question of Miss Maccaw’s title. It appears by the testimony submitted that she is in possession as devisee under the will of Mrs. Mary C. Wagner, proved before the ordinary of Chatham County, Ga., April 14, 1898, and an exemplification thereof recorded in the probate court of Charleston County. Mary Macca-w, named as executrix, duly qualified and the proper steps for calling in creditors and settling the estate were taken. We must, therefore, see what title Mrs. Mary C. Wagner had. The testimony shows that the property was purchased by the late Mr. Theodore D. Wagner and a deed of conveyance made to him by George I. Crafts et al., executors, dated 2d November, 1855, and recorded in the mesne conveyance office, Charleston, in book R, No. 13, page 167. Sometime afterwards, ‘two or three years before the war,’ Mr. Theodore D. Wagner turned over the house to his brother, Wm. H. Wagner, and his wife, Mrs. Mary C. Wagner, and they occupied it certainly up to the time of the war. William H. Wagner died in 1863, leaving no children; the property stood on'the tax books of the county auditor’s office from 1858, the earliest book preserved, to 1868, .as the trust estate Mrs. Mary C. Wagner. It was generally understood in the family that it belonged to Mrs. Mary C. Wagner; she lived after the war in Savannah, and up to the time of his death, February, 1880, Mr. Theodore D. Wagner regularly remitted the rents -to her. During the last two years of his life he was paralyzed and unable to write, but cohtin-ued to send the rent through some member of the family. Mr. Wagner was adjudged a bankrupt on 31st August, 1878, and discharged 22d November, 1878. His- assignee was discharged 25th' March, 1879. This property does not appear on the schedule of assets, and was never taken possession of by the assignee. The property having been forfeited for taxes, was bought at the sale by Mrs. Mary C. Wagner, who under the law then in force received a patent for the same executed by the governor, and with the great seal of the State attached, dated 4th day of January, 1880, which was recorded in the office of the secretary of State on the 7th July, 1880, and ón the same'day in the mesne conveyance office, Charleston,- in book V., No. 17, ■page 15. After the-death of Mr. Wagner, Mr. John Ha'nckel took-charge of the property for Mrs* Mary C. Wagner, and on 'his death,,in 1886, the charge devolved on his son, Mr. Francis S. Hanckel,' whose testimony has been taken in this. case. The .property, since the issuing .of the patent above referred to was leased in Mrs. Wagner’s name, the rents were remitted to her, and when they-'were insufficient, money was sent from- Savannah by her and expended on repairs, etc. ■ ■</p> <p>“As to the persons who might have any claim upon the property. — The heirs of Wm. H. Wagner besides his widow were his brothers and sisters, who were all of age at the time .of his death, and have long since'been barred. The creditors of Mr. Theodore D. Wagner are barred-as well by the lapse of time as by his discharge in bankruptcy. ' His heirs were his widow, who died in 1893, his son, Wm. H. Wagner, who was-thirty-one years of age at the time of his father’s death, and died in 1898; his daughters — Mrs. Talley, who'is now about thirty-six years of age,'Mrs. E. O. Woods, now about thirty-five years, and Mrs; Clayton Woods, who was thirty-one years of age on the 21st August, 1899, and thus under section 98 of the Code of Procedure had dost her right of action before the making of the contract of sale.</p> <p>“It is claimed on the part of the plaintiff, first: That there •was so clear an intention shown- by Mr. Wagner t-o give this property to his sister-in-law that a 'Court of Equity would presume this 'intention carried -out and the title actually passed. The evidence goes to sustain this view; 'but inasmuch as such -intention could at any time have been carried out by the execution of a deed of conveyance,, it can only be taken as corroborative -of Mrs. Wagner’s possession. Second.-That Mrs. Wagner’s possession was long enough to presume a ■ grant or deed. This- again must ■ be taken as showing the uninterrupted and quiet occupation and the acquiescence of parties who might have a' claim- or interest. And third. • That the possession from the time of the issuing and recording of the patent in 1880 was -open, notorious and such as to make distinctly adverse possession which -has now ripened into title, and this I hold-to be fully sustained. The plaintiff, then, having title by possession, can- she under such title maintain the present action? ■ Under the-authority of the case of Busby v..Rf R. Co., 45 S. C., 317) the principles of which decision are also found in Harrelson v.-Scwvis, 39 S. C., 14; Cave v. Anderson, 50 S. C., 293, and Duren v. Kee, 56 S.-C., 444, our-Courts have held that .a title by possession may be asserted affirmatively and not -merely as a defense, and that one may maintain an action for the recovery of real estate or for damages to real estate upon the strength of such a title. This being so, it seems clear that ar_ action for-the specific performance of a contract relating to real estate -can be equally maintained; and as- the contract in this case is admitted, I bold that it rrfust be enforced. I, therefore, recommend 'that the prayer of the complaint be granted, and the defendant be required to comply with her agreement for the purchase of the premises described.” ■</p> <p>From Circuit decree confirming this report, the defendant appeals. ...</p> <p>.cite: Cases cited by Circuit Judge: 53 S. C., 38; 57 S. C., 392, are foreclosure cases and do not apply.</p> <p>cites : Plaintiff holds title by adverse possession and Stat.' of Lim.: Code, 98; 48 S. C., 293. Title of plaintiff is good and marketable, and Court will decree specific performance: 5 Rich. Eq., 570; 6 Rich. Eq., 222; 24 S. C., 487; 48 S. C., 282; 11 Rich. Eq., 227-; 57 S. C., 393. Action for specific performance may resi-On title by adverse possession: 39 S. C.,14; 45 S. C., 312;' 50 S. C., 293; 56 S. C., 444; 56 N. Y., 344: "Statute having commenced to run, no subsequent disability will arrest it: 3 Brev., 286; 1 N. & McC., 296; 35 S. E. R., 941.</p>

<p>Before Townsend, J., Barnwell, November; 1899.</p> <p>Action by .H. .P.- Anderson against. Atlantic. Coast Line R. R. Co. for statutory penalty for not maintaining cattle guards on his.lines of pasture .fences. The following is the deed under which the defendant claims the land on which its road is.located, omitting-formal parts: .• •</p> <p>“Know all men by these presents, That we,:<H..P. Ander^ son and Mrs. Emma D. Anderson,- of .BarnwEll County and State of South Carolina, in consideration of .the benefits expected to be derived from the building, of its .proposed railroad and the sum of $100 to us paid by the Atlantic Coast Line Railroad Company of South Carolina, a corporation created and organized under the laws of -said State, have granted, bargained, sold and released, and by .these presents do grant, bargain, sell and .release unto the said Atlantic Coast Line Railroad Company of South Carolina, all that piece, parcel or strip of land lying, being and situate, in the county of Barnwell, State aforesaid, -the same being 130 feet wide and 2,573 feet long, more or less, extending through and across my lands in said county, the exact location tó be determined by the said company. Together with all and singular the rights, members, hereditaments and appurtenances to the said premises belonging, or in anywise, incident or appertaining; said strip of land is bounded on. the east by Lower Three Runs and the lands of Dr. Allen Patterson, and on the west by lands of Richard Cave; and.the undersigned to fix up the pasture. fences. To have and to. hold all and singular the premises before mentioned unto the said Atlantic Coast Line. Railroad Company of South Carolina, its successors and assigns forever. And we do hereby bind ourselves, heirs, executors and .administrators, to warrant and forever defend all and singular the said premises unto the said Atlantic Coast Line Railroad Company of South Carolina, its successors and assigns, against us and our heirs, and all other persons lawfully claiming, or to claim, the same or any part thereof.”'</p> <p>The Judge charged the jurjr as follows, omitting such parts of the requests as are not in question by the exceptions:</p> <p>‘ “The plaintiff in this action brings this action for the purpose of recovering what’s been termed a penalty for the violation of a duty, as alleged against the -railroad company. Under this statute, you have heard it read several times, and 1 read it to you as a part of my charge. (Reads secs. 1729 and 1730.) That statute is imperative in its terms against the railroad companies. No doubt about -the terms of it unless the -owner -of the fence lines or the fence on the line release-the railroad company. My attention has been called in this case to this paper, which purports to be, and is, a deed from H. P. Anderson and Emma D. Anderson to -the Atlantic Coast Rine Railway Company of South Carolina. It is a deed to a strip of land 130 feet wide and 2,573 feet l°ng> more or less, in fee simple, it is a sale out and out, just as any one would sell. It is the form, as our statute says, to convey -title; it is not the right of way to the railroad company, but it is one of the title to the land, that does convey the title in fee simple, and Mrs. Anderson, according to the terms here, renounced her dower, and by the terms of that writing the title passed to the railroad company, and that carried the responsibility to maintain cattle guards, unless there was, as I said, an agreement outside to release the railroad company. We have condemnation laws and we have modes of obtaining rights of way. Condemnation does not mean a right to the land, it is a right to pass over the land. The State passes it by what is called its right of eminent domain to go through land, and when they undertake to get that they must get the right of way — not the land, necessarily, but the right to pass, under what we call an easement to construct tracks, to construct side tracks and depots and all structures necessary to run that railroad; that’s what an easement is, that’s what it means. Now, if they buy the fee simple to the land, it is a different thing; they own it and they can sell it. Where simply the right of way is given or leased to them, released, just simply an easement — no doubt about where they condemn the land or get an ordinary lease, or release, I don’t know which it is termed, but you know what I mean, it is called either, I believe — where they get an ordinary lease to build it is their duty to build, ordinarily to build cattle guards, stock guards or cattle gaps, that’s imperative, they must fix up the cattle gap or stock guard so that cattle can’t get into your field. And as I take it, the fence line or line of fence owner would 'be entitled to recover for every fence or line of fence crossed. 'Suppose the railroad bought 10,000 acres and it crossed fifty fences, I charge you they are not bound to construct stock guards there, on their own land; the legislature don’t mean that, that they are to construct stock guards on their own land, unless there are other circumstances in the case that theré is an implied understanding or a direct understanding that they are to sustain to each other, the company and the owner, the same relationship as if it was condemned, then it would be to construct cattle guards, I charge you that this don’t mean that. J know that counsel for plaintiff quoted authority in a Missouri case — and that’s law in that State — -and generally on statutes something like this it has been so held, that’s why the court of last resort said it makes no difference whether they owned a fee or an easement, and we can’t be governed by the decisions of other States; if counsel said he read the statute and it was like ours, that’s sufficient. Did the defendant company purchase the fee simple title ? If so, it is his land and fences. So far as the terms of this deed is concerned, there is nothing for that here. I don’t — I merely speak of it — I don’t say it is in evidence. I can’t speak of anything in evidence. If I did, I could explain the law much easier. Thun again, so far as the evidence goes, did the circumstances show that the defendant owned property around there ? How did the parties trade ? Do the circumstances show the relation was to remain the same as if the owner conveyed the fee simple, or the same as if he had conveyed only an easement ? If the circumstances showed that, then they are bound to put in ’the cattle guard; if they did not, then they are not bound to do it. That’s my construction of the statute. Then the question arises, when must they construct the cattle guard ? My understanding is, the spirit of the statute is, that -they must do it in a reasonable time. They must do it when they build the road, it is a part of the road, or as soon as it can be done in reason; they can’t do it by electricity, they must do it in a reasonable time, and the jury must say what is a reasonable time. And after that reasonable time has passed, an action may be brought. I don’t know if you understand all that, if you become confused, come out and ask about it.</p> <p>“Now, so far as the requests to charge. First, the defendant requests this: ‘That the deed of the plaintiff and wife to the defendant company, conveying, as it does, a fee simple title to the land in question, and not a mere right of way, there is no obligation upon the defendant to construct cattle guards upon the said land.’ I charge you that, unless you find, as I have said, that from all the facts and circumstances there was an understanding between them that the defendant was not to take advantage of his possession of fee simple title, if you find 'he bought it; but the relation between the plaintiff and defendant was to be as if only an easement was granted. II. ‘That the statute under which this action is brought requires that there shall not only be a fence, where the railroad crosses, but that the plaintiff in the action shall be the owner of such fence, and the plaintiff cannot be the owner of a fence upon the defendant’s land.’ I charge you that, with the same qualification that I have added to the other request. If you find that the plaintiff and defendant had an understanding between them, if there is anything to show it — that the plaintiff was to maintain his line across there and the defendant relinquished any right he might have, if he-'bought such a title — then I charge you that’s the law, that this request is the law. * * *</p> <p>“The plaintiff’s requests, coming last, are as follows : * * *</p> <p>“II. That the term Tattle guard,’ as used in the statute, has a legal meaning, and is defined to mean “such an appliance as will prevent animals from going upon the land adjoining the right of way;” that a mere pit under the track is not sufficient, 'but the appliance must extend to the outer limit of the right of way; and if the jury find from the preponderance of the evidence, that the defendant’s railroad crossed the line of plaintiff’s fence, in one or more places, and that the railroad company has failed to construct cattle guards such as already defined, then your verdict should be for the plaintiff.’ Well, in the first place, cattle guard is not used in the statute at all, I might refuse -the request on that ground. The statute says—</p> <p>“Mr. Izlar: I didn’t have the statute before me, I will substitute the words in the statute.</p> <p>“The Court: I don’t care to be so particular as that; I have said already that I consider cattle guard has a legal meaning, I consider that it says in the statute stock guard or cattle pit; I think that has a legal meaning as stated here, and that it means such an appliance as will prevent animals from going upon the land adjoining the right of way. I think that, under our statute, it is not bound to .extend to the outer edge of the right of way, but only so far as is necessary for its trains to pass, or rather for the land owner to bring his fences up to allow the trains to pass, bring up his fences on each side of the rail, the iron, as will be safe; he mustn’t bring it up to the iron, because the owner can’t come up to the track, the iron; therefore, they must go far enough to make it safe. But I do not think it -is the law in our State to go all the way across the whole hundred and thirty feet, or whatever it may be. We are bound to use the rule of common sense, as counsel invoked. With that qualification, I charge you that. * * *”</p> <p>From verdict and judgment for defendant, plaintiff appeals on the following grounds:</p> <p>“ist. That the Circuit Judge, Hon. D. A. Townsend, erred in holding, and so charged the jury at the trial of said cause, that where the railroad company acquires a right of way through the lands of the owner, 'by purchase and conveyance in fee simple, and not by condemnation proceedings under the statute, it is is not bound to construct and keep in repair an adequate stock gxtard or cattle gap at every point where the line of such railroad crosses the line of any fence of the land owner executing such conveyances; unless there was an understanding, expressed or implied, that the land owner and the railroad company shall sustain the same relationship as if the said right of way had been condemned; whereas, he should have charged, that the language of the statute being" imperative, it made no difference whether the-right of way was acquired by purchase and conveyance or b;y condemnation, whether a fee simple or an easement, the railroad company was bound to construct and keep in repair an adequate stock guard or cattle gap at any point where the line of the railroad crosses the line of any fence in the State; and failing so to do, it would be liable to pay to owner or to the owners of the fence upon the line of which such stock guard or cattle gap should have been constructed and kept in repair, the sum of $100 to be recovered by action in the Court of Common Pleas for the county in which such stock guard or cattle gap should have been constructed and kept in repair.</p> <p>“2d. That the Circuit Judge erred in his interpretation of the statute in regard to- the construction and repair of stock guards and cattle gaps, by holding that the statute only applies in cases where the railroad company acquires the right of way by condemnation, and not where it acquires the right of way by conveyance and purchase in fee, and in charging the jury that there is a difference under the statute, whether the railroad company owns the fee in the right of way, or only an easement, as to its liability.</p> <p>“3d. That the Circuit Judge erred in his-construction of the statute and in his charging the jury as follows: 'How did the parties trade ? Do the circumstances show that the relation was to remain the same as if the owner conveyed the fee simple, or the same as if he had conveyed only an easement? If the circumstances -showed that, then they are bound to put in -the cattle guard; if they did not, then they are not bound to do it. That’s my construction of the statute.’ Whereas, he should have construed the statute as applying in all cases, whether the right of way was acquired by conveyance in fee simple or by condemnation proceedings, and only amounted to an easement, and should have so charged the jury.</p> <p>“4th. That the Circuit Judge erred in charging the defendant’s first request: ‘That the deed of the plaintiff and wife to the defendant company, conveying as it does a fee simple title to the land in question and not a mere right of way, there is no obligation upon the defendant to construct cattle guards upon said lands, even when modified as follows : I charge you that, unless you find, as I have said, that from all the facts and circumstances, there was an understanding -between them, that the defendant was not to take advantage of his possession of the fee simple title, if you find he bought it; but the relation between the plaintiff and the defendant was to be as if only an easement was granted. Whereas, he should have charged that the obligation upon the defendant to construct stock guards or cattle gaps; under the statute, was the same whether the defendant acquired a fee simple in the right of way, under the deed or only as an easement therein.</p> <p>“5th. That the Circuit Judge erred in charging the second request of the defendant even as modified, the same being as follows: ‘That the statute under which this action is brought requires that there shall not only be a fence where the railroad crosses, but the plaintiff in the action shall be the owner of the fence, and the plaintiff cannot be an owner of the fence upon the defendant’s land. I charge you with the same qualification that I have added to the other request. If you find that the plaintiff and the defendant had an understanding 'between them, if there is anything -to show it, that the plaintiff was to maintain his line across there and the defendant relinquished any right he might have, if he bought such a title, then I charge you that’s the law, that this request is the law.’ The said proposition of law being unsound even as fnodified, and was calculated to mislead the j ury, as to a true construction of the statute.</p> <p>“6th. That the Circuit Judge erred in not charging the plaintiff’s second request, as follows : ‘That the term “cattle guard,” as used in the statute, has a legal meaning, and is defined to mean such appliance as will prevent animals from going upon the land adjoining the right of way; that a mere pit under the track is not sufficient, but that the appliance must extend to the outer limit of the right of way; and if the jury find from the preponderance of the evidence that the defendant’s railroad crossed the line of the plaintiff’s fence, in one or more places, and that the railroad has failed to construct cattle guards, such as already defined, then your verdict should be for the plaintiff.’ And in charging the jury thereon as follows: T have said already that I considered cattle guard has a legal meaning, I consider that it says in the statute, stock guard or cattle pit; I think that has' a legal meaning, as stated here, and that it means, such an appliance as will prevent animals from going upon the land adjoining the right of way. I think that, under our statute, it is not bound to extend to the outer edge of the right of way, but so far as it is necessary for its trains to pass, or rather for the land owner to bring his fence up to allow the train to pass, bring up his fences on each side of the rail, or the iron, as will be safe; he must not bring it up to the iron, because the owner cannot come up to- the track, the iron; therefore, he must go far enough to make it safe. But I do not think it is the law in our State to go all the way across the whole one hundred and thirty feet, or one hundred feet, or whatever it may be, we are 'bound to use the rule of common sense, as counsel invoked, with that qualification, I charge you that.’</p> <p>“7th. That the Circuit Judge erred in holding that no liability attached to railroad companies for a violation of the provisions of sections 1729 and 1730 of the Revised Statutes of 1893, in regard to the stock guards and cattle gaps, where the railroad company acquired its right of way by grant or conveyance in fee simple, but only where such right of way is acquired by condemnation proceedings, and that there is a difference, under the statute whether the railroad company holds the fee, or only an easement, in the right of way, as to the liability of railroad companies, in failing to construct adequate stock guards or cattle gaps at every point where the line of their railroad crosses, or may hereafter cross the line of any fence in this State; and that where the railroad company holds the fee in the right of -way, they are not bound to construct and maintain stock guards and cattle gaps unless there is an understanding between the land owner and the railroad company, that the railroad company should do so; such construction of the statute being not only unsound and erroneous, but contrary to the true intent and meaning of the makers and framers of the statute.”</p> <p>The latter cite: Nothing in the statute which limits it to cases of easement: 23 S. C., 550. And it applies in cases of absolute deeds: 16 N. Y., 476; 18 Barb., 350; B. Mon. (Ky.), 218; 63 N. Y., 58; 35 Ark., 622. What is cattle guard? 32 Kan., 217,-61 Iowa, 467.</p> <p>cites: The case in 32 Kan., 21J, applies to an easement. Basement deñned: 18 N. Y., 109.' One conveying land by fee simple deed cannot be the owner: 33 S. C., 181.</p>

Before Keugh, J., Marlborough, May, 1900. Action by Robert T. Pearson, administrator of John D. Pearson, against Sarah F. Pearson, widow, his children, and creditors, to marshal the assets of said estate and sell the land in aid of assets.

Before Townsend, J., Kershaw, September, 1900. Action by Josephine E. Cureton and her co-remaindermen against South Bound Railroad Co. for compensation for right of way. From order overruling demurrer, defendant appeals. cite: Party in- possession could consent-to -entry: 38 S. C., 34; 21 S. C., 431. Plaintiffs should have proceeded under the statute: Rev. Stat., 1743, 1744; 15 S. C., 384; 5 Rich., 597; 11 Rich., 245; 1 Am.

<p>Before Townsend, J., Kershaw, September, 1900.</p> <p>Action for possession of land by Alfred E. Kennedy, Josephine E. Cureton and Annie K. McDowall against David R. Williams, jr., trustee, Sallie K. Winkler, E. D. Blakeney, A. K. Blakeney, Lilian M. Blakeney and E. Miller Boykin. From judgment for defendant, Williams, plaintiffs appeal.</p> <p>cites: As to service on minors: Code, 155, sub. 2, 1591 57 S. C., 551. Payment of purchase money to another than one designated by order, is no payment: 39 S. C., 537; 9 Rich. Eq., 392; 15 S. C., 164; 13 S. E. R., 195. Recitals in Mrs. C — ’s deed bind her devisee: 38 S. C., 383.'</p> <p>cites: Judgments are presumed to be based on proper proceedings: Riley Eq., no; 24 S. C., 398; 18 S. C., 602; 24 S. C., 503. Service on parent of minor in suit of parent is not required: 'Code, 160; 35 S. C., 404; 45 Miss., 374; 31 S. W. R., 139; 51 Cal., 615. Mere irregularity does not effect jurisdiction: 56 S. C., 96. Whether Mrs. C— paid to trustee without proper qualification cannot be inquired into here: 58 S. C., 134. Presumption is that clerk did his duty and took the bond: 5 Rich., 534; 24 S. C., 503; 11 Rich. Eq., 572. Wrong will not be imputed to the Court: 57 S. €., 559. If fund is lost, purchaser cannot be made to suffer: 3 Rich. Eq., 7; 12 Vesey, 89; Bail. Eq., 471; 1 N. & Mc'C., 408; 1 McC., 187; 2 DeS., 375-</p>

Before Townsend, J., Barnwell, December, 1899. Action on contract as to lands by W. S. Tillinghast agains Chloe Henderson and John Henderson. The following is the Circuit decree: “This is an action for specific performance and for sale of land. The whole history of the case is long and the greater part of it irrelevant, and I shall, therefore, confine the consideration to the real issue. The land of Chloe Henderson was sold by order of Court by the master for Barnwell County.

<p>Before Aldrich, J., Abbeville, November, 1900.</p> <p>Action for injunction by R. M. Hill, in his own right and on-behalf of all others similarly situated and affected, against City Council of Abbeville, on the following amended complaint :</p> <p>“The plaintiff above named, by this, his amended complaint, complaining on behalf of himself and all others similarly situated and affected by the ordinance herein referred to, alleges:</p> <p>“I. That the defendant, the city council of Abbeville, is a body politic and corporate, and as such can sue and be sued.</p> <p>“II. That the plaintiff is a citizen and taxpayer of the city of Abbeville, in the county and State aforesaid, and is engaged in the business of general merchandizing and buying cotton for Charles E. Johnson & Co., who reside in the city of Raleigh, in the State of North Carolina.</p> <p>“HI. That this action is brought on behalf of this plaintiff, and all others similarly situated and affected by the ordinance hereinafter referred to, who shall in due time come into this action and have themselves made parties, and contribute to the expenses of this suit.</p> <p>“IV. That on the 13th day of June, 1899, the said city council of Abbeville passed and ratified an ordinance, known as the license ordinance, a copy of which is hereto attached as a part of this complaint, and marked exhibit A.</p> <p>“V. That said ordinance undertakes to impose upon this plaintiff and other business men of Abbeville a direct license tax, which, under the charter of the city of Abbeville, they have no right to do, said charter only providing in section 8 for imposing a license upon certain occupations therein named, and making no provision for imposing a license upon this plaintiff, or upon any other business or occupation, other than those named in section 8 of said charter.</p> <p>“VI. That said license ordinance is illegal, oppressive, and absolutely null and void, and is unconstitutional, in that it is levied for the sole purpose of raising revenue to- meet the current expenses of the city, as said ordinance so declares, and it imposes a tax upon certain citizens of the city of Abbeville which is not uniform, either in respect to persons or property, said ordinance putting a tax of $10 upon this plaintiff as a cotton buyer, and at the same time exempting cotton buyers who are buying for local mills; also putting a tax of $10 on all cotton seed buyers, except for local mills, which are exempt; putting a tax of $10 upon druggists and undertakers, and allowing other merchants to do business by paying $1 upon the first $1,000 worth of goods sold, and fifty cents upon each subsequent $1,000 worth sold; putting a tax of $5 upon lawyers whose income is not over $1,000, and: a tax of $7.50 upon those lawyers whose income is over one and less than $2,000; putting a tax of $50 upon each bank, when their capital stock only amounts tu about $75,000 each, and only charging..the Abbeville Cotton Mill $75, when their capital is $500,000;, putting a tax of $1 upon all dogs, irrespective of their value;, taxing livery stables running hacks $35, without hacks $25 ; putting a tax of $2.50 upon a boarding house with two boarders, and $5 upon one having more than two boarders; and in many other ways too numerous to mention, making discriminations both as to persons -and property, and putting on said tax in utter disregard of -sec. 6, of art. VIII.,- of the .Constitution -of this State, which provides that municipal corporations shall be vested with power to- assess and collect taxes for corporate purposes,, said taxes to be uniform in respect to persons and property within the jurisdiction qf the body composing the same; which -want of uniformity will more fully appear by reference to -said ordinance, a copy of. which is hereto attached, as above stated, marked exhibit A.</p> <p>“VII. That said ordinance is also illegal, null .and- void, b. so far as it -seeks to impose a license tax upon a person buying cotton for non-residents -of this • State, and upon cotton seed buyers for non-residents.of. this,State, and at the same time exempting buyers for local -mills, said, tax being contrary to the interstate commerce law and.to the.Constitution of the United States. ■ . , •</p> <p>“VII. That said license ordinance is also illegal, null and -void, and, contrary to sec. 5, of art.. I., of the Constitution of this State, in that said ordinance, in section-1 of said ordinance, provides: .‘That no person, firm or corporation, shall engage in, prosecute or -carry on any trade, business, occupation Or profession,hereinafter mentioned,- without having first paid a ■ special license tax therefor as follows, to .wit, &c.,’ and-section 4-.of the said ordin-ance provides as-fo-llows : ‘The city council hereby fesei-ves the right to- refuse or revoke any license for any .cause which may seem to it just;’ thus putting it in the power of the city council -of Abbeville to abridge the privileges -of the citizens of said city, and deprive them of their liberty and property without due process -of law, and to deny to any one, that they may see fity theQ equal protection of the laws.</p> <p>“IX. That the city council of Abbeville is operating under a special charter, and only has the rights conferred by said charter, and there has never been any vote or election in said city of Abbeville upon, the .question of surrendering its charter, and becoming incorporated under the general incorporation act of 1896, providing a method by which.'existing municipal corporations may surrender their charters, and take-out new ones.</p> <p>“X. That the said -city council has ordered that the said ordinance-go into effect on'the first-day of October, 1899, and threatens to fine or imprison all persons who do not pay said tax on.or by the first day of November, 1899.</p> <p>. “XI. That the question involved in- this action is one of common and general interest to many persons, and it is impracticable to bring them all before the Court; and,' therefore, this action .is brought in the name of the plaintiff, for his own benefit and for the benefit of all others similarly situated and affected by said ordinance, and in order to avoid 'a multiplicity of suits.</p> <p>“XII. That unless the said-city council of'Abbeville is enjoined from enforcing said illegal ordinance, irreparable injury will be done to this plaintiff, and all others affected by said ordinance, their rights and- immunities as citizens will be abridged, and their property will be taken from them without due process of-law. • ■</p> <p>“XIIL That the plaintiff -is without adequate remedy unless this honorable- Court enjoins said city council from enforcing said ordinance as they, are threatening to do, said ordinance providing that all classes of persons therein named failing or refusing to pay said tax, shall be fined not less than $2, or more than $100; or be imprisoned not less than two days, nor more than twenty days, for every day such business is carried on without such license, and the law not providing any remedy against a city council for false imprisonment. Wherefore the plaintiff prays judgment that the city council of Abbeville be perpetually enjoined and restrained from attempting to enforce said ordinance, and for such other and further relief as may be just, and proper.”</p> <p>The following is the decree on Circuit:</p> <p>“This action is brought in behalf of this plaintiff, and all others similarly situated and affected by the ordinance hereinafter referred to, who shall in due time come into this action and have themselves made parties, and contribute to the expense of this suit. The judgment demanded is that the city council of Abbeville be perpetually enjoined and restrained from attempting to enforce the ordinance referred to, and such other relief as may be proper. • The amended complaint was served upon defendant on October 16th, 1899. The summons and original complaint were not read at the hearing herein, and were not submitted to me with the record in the cause. I cannot, therefore, state the date of the original complaint, when it was filed, or when it was served upon defendant. I find' an order of his Honor, Judge Ernest Gary, as presiding Judge, dated October 5th, 1899, which enjoins and restrains the defendant from enforcing said ordinance against the plaintiff ‘until the hearing of this case upon its merits.’ The answer of the defendant is dated November 7th, 1899. A number of persons were, by order of Court, permitted to come into this action as plaintiffs, and the restraining order, above stated, was extended so as to include them. On the 13th day of June, 1899, the defendant, the city council of Abbeville, passed and ratified an ordinance, known as the ‘License Ordinance.’ The preamble, or beginning, of said ordinance is as follows :</p> <p>‘Por the purpose of meeting in part the current expenses of the city government of the city of Abbeville, S. C., for the fiscal year commencing January 1, 1900, and to meet in part such other indebtedness of the city of Abbeville, S. C., as may become due in said fiscal year. Therefore, be it ordained .by the city council of Abbeville, S. C., and by authority of the sameSection I. That no person, firm or corporation shall engage in, prosecute or carry on any trade, business, occupation or profession hereinafter mentioned, without having first paid a special license tax therefor as follows, to wit: Agents, for enlarging pictures $i per day, per month $10.’. Then follows, in alphabetical order, a list pf one hundred and fifteen or twenty kinds of trade, business, occupation or professions, and the amount of the tax upon each. The plaintiff alleges that he ‘is engaged in the business of general merchandising and buying cotton for Charles E- Johnson & Co., who reside in the city of Raleigh, in the State of North Carolina.’ The provisions of the ordinance in reference to merchants and cotton buyers are: ‘Merchants shall pay license according to the following schedule of gross sales and prices upon sworn returns: sales amounting to $1,000 or under, the sum of $i; on each additional $1,000 of sales or fractional part thereof, the sum of fifty cents. Cotton buyer, except for local mills, $io.’ Returning to the ordinance. ‘Section 2. Any person or persons carrying on or prosecuting any business or occupation, oi running any establishment named in this or preceding sections, without first having taken out a license therefor, shall be fined (except in cases where special penalties are imposed) not less than $2 nor more than $ioo, or be imprisoned not less than two days nor more than twenty days, for each and every day such business is carried on without such license. That no license shall be used for a less period than one year (unless otherwise specified), dated from the first day of the month in which the same is issued, and it shall be the duty of the clerk of council to see that licenses and fees are imposed and paid, and to promptly report any and all'cases of failure to do so. Section 3. That for any business, occupation or profession not enumerated in the foregoing section, the license shall be regulated and imposed by the city council at any meeting of the same. Section 4. The city council hereby reserves the right to refuse or revoke any license for any cause which may seem to it just.’ Section 5 refers to- ‘false or fraudulent returns/ necessary or required by the ordinance, and the punishment therefor. ‘Section 6. That any person, firm or corporation carrying on or prosecuting any trade, business, occupation or profession, or running any establishment named in this ordinance, or upon which a license may hereafter be imposed by the city council, without first having taken out á license therefor, shall be fined (except in cases where special penalties are imposed) not less than $2 nor more than $100, or be imprisoned not less than two days nor more than thirty days in the county or city prison, for each and every day such business, occupation or profession is carried on without such license. Section 7. That this ordinance shall go into effect on the first day of October, 1899, and all persons, firms, coi> porations or professions, not conforming to its requirements shall be liable to the penalties herein imposed from and after said last mentioned date.’ Plaintiff, in paragraph 5 of his complaint, alleges: ‘That said ordinance undertakes to impose upon this plaintiff and. other business men of Abbeville a direct license tax, which, under the charter of the city-of Abbeville, they have no right to-do, said Charter only providing in section 8 for imposing a license upon certain occupations therein named, and making no provision for imposing a license upon this plaintiff, or upon any other business or occupation, other than those named in section 8 of said charter.’ The charter of the city of Abbeville is contained in ‘An act to incorporate the city of Abbeville,’ approved January 5th, 1895, see Stat. of S. C., vol. 21, p. 1134. Sec. 8 of said act or charter reads: ‘Section 8. That the said city council may grant or refuse licenses to keepers of livery stables, drivers of public drays, hacks and vehicles kept for hire, butchers, auctioneers, peddlers, itinerant tradesmen, keepers of billiard tables, ten-pin alleys, -or any -other kind of game, exhibitions of skill or chance within said corporation; and the said city council may impose a license fee on any of the said occupants, and also on any person who keeps a store, shop, office or other place of 'business and car- ■ ries on his trade, profession or business in said city, but resides and holds his property beyond the limits of said city, thus escaping his or her just share of the burdens of the city government; and said city council may enforce the collection of said license fees, which shall be turned into the city treasury.’ The plaintiff alleges that he is a merchant and cotton buyer, residing, in the city of Abbeville. A number of the parties who have intervened in this action and are now plaintiffs herein, are not engaged in any business men-in said sec. 8, nor are they included in the provisions thereof. If this was the only law upon this subject, it is plain that the city council of Abbeville could not impose a license fee or tax upon persons other than those enumerated in said section, or upon occupations or kinds of business not therein specified; for ‘a municipal corporation in this State, can only exercise power with which it is clothed by our General Assembly,’ Mauldin v. City Council, 42 S. C., 298; State v. Maysville, 12 S. C., 76. The Constitution of this State, adopted in 1895, contains a number of provisions-not found in the Constitution of 1868. The Constitution of 1868 contained no provisions in reference to license fees or taxes, such as are found in the Constitution of 1895. Yet, under the Constitution of 1868, the Supreme Court repeatedly held that the power to raise revenue by a license tax on business, given by statute to city council, violates no provision of said Constitution. The Supreme Court, in Information v. Oliver, 21 S. C.,'325, said: ‘We think that it would result in no good to reopen the argument and renew the .discussion. It concerns the interests of all that the law and its interpretation should be settled.’ This language was cited, with approval, in Information v. lager, 29 S. C., 443. If such was the law under the Constitution of 1868, it must be the law now, because the Constitution of 1895 has numerous provisions which afford additional supports for the cases referred to. Indeed, after reading the decisions upon this subject, and the provisions of the Constitution of 1895, we are impressed with the idea that the framers of the Constitution of '1895 prepared several of the provisions of that instrument with reference to said decisions, and intended to incorporate in the new Constitution the law as declared by the Courts. I shall call attention to two provisions of the Constitution of 1895. In the last proviso, in sec. 1, of art. X., entitled ‘Finance and Taxation,’ we find, ‘the General Assembly may provide for a graduated tax on incomes, and for a graduated license on occupations and business.’ This is an unequivocal grant of power to the General Assembly, giving to that body a power which, under the Constitution of 1868, had been questioned. Sec. 6, of art. VIII., Con. of 1895, entitled ‘Municipal corporations and police regulations,’ provides: ‘The corporate authorities of cities and towns in this State shall be vested with power to assess and collect taxes for corporate purposes. * * * License or privileged taxes imposed shall be graduated so as to secure a just imposition of such tax upon the classes subject ■thereto.’ It will 'be noted that the ‘License or privileged taxes’ are to be imposed with reference to ‘the classes subject thereto.’ Paragraph first, sec. 11, art. XVII., "of the Con. of 1895, provides : ‘That all laws in force in this State, at the time of the adoption of this Constitution, not inconsistent therewith and constitutional when enacted, shall remain in full force until altered or repealed by the General Assembly or expire by their own limitation.’ In Mauldin v. City Council, 42 S. C., p. 299, it is said, in the opinion of Mr. Justice Pope, that ‘the power of taxation may be given a municipal corporation, but such power when exercised by such municipal corporation must not only be exercised according to the charter thereof; but also within the limits of the Constitution of the State.’ This language was used in reference to the Constitution of 1868; but, assuming that it is applicable to this case under the Constitution of 1895, let us see if the city council of Abbeville has the power to impose license fees and taxes, and whether or not its ordinance is in conformity to law. Sec. I, art. VIII., Constitution of 1895, is as follows: ‘The General Assembly shall provide by general laws for the organization and classification of. municipal corporations. The powers of each class shall be defined so that no such corporations shall have any power or be subject to any restrictions other .than all corporations of the same class. Cities and towns now existing under special charters may reorganize under the general laws of the State, and when so reorganized their special charters shall cease and determine/ In accordance with the above stated provision of the Constitution, the General Assembly of this State, on March 5th, 1896, passed an act, entitled ‘An act to provide for the incorporation of towns of not less than one thousand nor more than five thousand inhabitants/ XXII., Stat., p. 67. This act, in ^ec. 1, provides, ‘That citizens of any proposed town of this State * * * desiring to be incorporated shall present to the secretary of State, &c.,’ a petition. This refers to a ‘proposed town,’ one not yet in existence. Sec. 25 of this act provides that, ‘Any town * * * already chartered which is desirous of surrendering its charter and accepting incorporation under this act * * * may be incorporated under this act.’ The terms of this section are, manifestly, permissory. Sec. 12 of said act reads, ‘That said council may, and they are hereby, authorized annually to require by ordinance the payment of such reasonable sums of money as a license tax by any person or persons, corporation or corporations, engaged or intending to engage in any calling, business, occupation or profession, in whole or in part, within the limits of said town, except those engage'd in the calling or profession of teachers or ministers of the gospel. They shall have power to collect license or taxes from .all persons representing publicly within the limits of said town, for gain or reward, any plays or shows of whatever nature or kind soever; and said town council are hereby authorized and empowered to pass such ordinances as are necessary to give full force and effect to this section, and to punish delinquents thereunder.’ It was admitted upon the argument that the city of Abbeville has more than 1,000 and less than 5,000 inhabitants. On March 25, 1897, the General Assembly passed ‘an act relating to 'the powers of certain corporations’ (22 -Stat., p. 464), as follows: ‘Section 1. That all municipal corporations of this State having a population of not less than 1,000 inhabitants and not more than 5,000 inhabitants are hereby endowed with the power enumerated in an act of the General Assembly, approved 5th March, 1896, and numbered 36, &c. Section 2. That the powers hereby conferred are in addition to those already enjoyed by the said municipal corporations under their respective charters.’ Aot No. 36, 22 Stat., p. 67, and ‘approved 5th March, 1896,’ is the act hereinbefore referred to, and is entitled ‘an act to provide for the incorporation of towns of not less than one thousand inhabitants.’ I think, and so hold, the words, ‘That all municipal corporations of this State,’ as used in sec. 1 of the ‘act relating to the power of certain corporations,’ refers to and includes municipal corporations existing under special charters, as well as those incorporated under the general act of 1896, supra. The construction, if the plain and unambiguous words of sec. 1 need construction, is supported and sustained by sec. 2, which declares ‘that the powers hereby (in sec. 1) conferred are in addition to those already enjoyed * * * under their respective Charters.’ The word ‘charters’ is plural. Under the general law there is but one ‘charter’ or form of ‘charter,’ and we must assume that the act refers to all charters coming within the terms of the act. This view finds further and conclusive support in the word ‘respective.’ It would be without force or effect if the act is construed to refer only to charters under the act of 1896. The act of 1897 ‘endowed’ the city council of Abbeville ‘with the powers’ enumerated in the act of 1896, numbered 36; including sec. 12, which authorizes said council to impose certain license taxes. I have heretofore cited said sec. 12 in full. The act of 1897, entitled ‘an act relating to the 'powers of certain corporations,’ was amended by ‘an act to amend an act entitled an act relating to the powers of certain corporations,’ approved 2d day of March, 1899. See acts of 1899, p. 53. This act was approved March 3d, 1899. It amends the act of 1897 by striking out ‘five’ and inserting ‘ten,’ making the maximum number of inhabitants 10,000 instead of 5,000. By an act of the General Assembly, approved March 2d, 1899, and entitled ‘an act to provide a general law for the amendment of town and city charters’ (act of 1899, p. 70), it is provided: ‘That on and after the approval of this act, the charter or articles of incorporation of any city or town in this State, whether such city or town was originally incorporated by act of the General Assembly or under the general law by the secretary of State, may be amended in any particular, not-inconsistent with the Constitution and laws of the State, in the following manner.’ The ‘manner’ is then stated, viz: by petition, vote, &c. Section 2 of this act repeals all acts and parts of acts inconsistent with this act.</p> <p>“The act just cited cannot affect the city council of Abbe-ville, and, inter alia, for the following reasons: The act is prospective. It has no effect upon past charters, unless those charters were amended after its passage. It is permissive and directory when called into use. It does not purport to repeal any existing charter or amendment thereof.. The charter of the city of Abbeville was, as we have seen, approved in 1895, and amended in 1897. The city council of Abbeville are not trying to have the charter of the city amended, the council is trying to enforce charter powers given to the city before the passage of the act of 1899. It is contended that the act of 1896, entitled ‘an act to provide for the incorporation of towns of not less than 1,000 nor more than 5,000 inhabitants,’ and the act of 1897, entitled ‘an act relating to the powers of certain corporations,’ are unconstitutional, in that they relate to more than one subject not enumerated or expressed in their titles. I do not see any objection to the former act. The objection to the act of 1897 is that it legislated as to two subjects:' the one being' as to charters for towns of not less than 1,000 and more than 5,000 inhabitants; and the other being charters for towns of not less than 200 and not more than 1,000 inhibatants; and, also, in that it seeks to amend charters generally. Art. III., sec. 17, of the Constitution of 1895, is as follows: ‘Every act or resolution having the force of law shall relate to but one subject, and that shall be expressed in the title.’ The same provision is contained in the Constitution of 1868. See art. II., sec, 20. The Court has construed this section ‘As we have said in Charleston v. Oliver (16 S. C., 56), upon the authority of Mr. Justice Cooley, “there has been, and ought to be, a general disposition to give a liberal construction to constitutional provisions like this now under consideration, rather than to embarrass legislation' by an unnecessary strictness of construction.” Hence, when a' question, under this clause of the Constitution, is presented for adjudication, we are bound to take a liberal and enlarged view, and if practicable bring the legislation which is assailed as unconstitutional within the limits prescribed by the supreme law of the land.’ This case is cited with approval in State v. Chester, 39 S. C., p. 327, where the authorities are collated. In Ex parte Bacot, 36 S. C.,' 135, it was held that an act entitled ‘an act to provide for the formation of certain corporations under general laws,’ was not subject to the objection herein presented. The Court says: ‘In the very nature various matters were to be considered under it, somewhat like an appropriation act, with a general title covering many particulars. The “subject” was the formation of certain corporations, aiid it would seem that the right to form corporations would include the power to be given to such corporations. How else could they be formed ?’ The ‘subject’ of the act of 1897, supra, was the regulating of the powers of certain corporations, and it would seem that the right to regulate the powers of corporations would include the powers to be given to such ■ corporations. Art. III., sec. 34, of the Constitution is as follows: ‘The General Assembly of this State shall not enact local or special laws concerning any of the following subjects, or for any of the following purposes, to wit: * * * III. To incorporate cities, towns or villages, or change, amend or ■ extend the charter thereof. * * * XII. The General Assembly shall forthwith enact general laws concerning said subjects for said purposes, which shall be uniform in their operations.’ The General Assembly, under these provisions, could only amend the charter -of Abbeville by a general law, and that is the nature of the act of 1897. The body of the act refers to municipal corporations and nothing else; therefore, it relates to but one subject. The argument of counsel is based upon the idea, that inasmuch as the act refers to two former acts, it -must refer to two subjects. This deduction is neither logical nor sound. The requirement of the Constitution that an act shall relate to but one subject, is complied with when the act relates to a part of a subject. .It is not necessary, nor is it usual, 'for an act to exhaust a subject. If several acts relate to several phases of the same'subject, the General Assembly may legislate, in one act, upon several of said phases' in a subsequent act. I hold that the General Assembly can, by an amendatory act, amend several acts, by proper reference thereto, provided all of the acts relate to the same subject. I. think that the act of 1897 ‘expresses’ in its title, the subject of the act. In addition to the-authorities cited, I would also refer to-Endlich on S-tat., ed. 1888, sec. 524, p. 740. People v. Mahony, 13 Mich., 481:</p> <p>“It is alleged in paragraph 6 of the complaint that the ordinance in question was passed ‘in utter disregard of sec. 6, of art. VIII., of the Constitution, which provides that municipal corporations shall be vested with powers to assess and collect taxes to be uniform in respect to persons and property within the jurisdiction of the body composing the same.’ The' ‘want of uniformity’ consists in alleged ‘discriminations as to persons and property.’ I will refer to this allegation further on, when considering the alleged ‘discriminations,’ but in passing, will say that the complaint cites only a part of said section, and omits an entire and important- sentence, containing the fundamental law- upon the subject of ‘license or privileged taxes.’ Art. VIII., sec. 6, is as follows: ‘The corporate authorities of cities and towns in this State shall be vested with power to assess and collect taxes for corporate purposes, said taxes to be uniform in respect to persons and.property within the jurisdiction of the body composing the same, and all the property, except such as is exempt by law, within the limits of cities and towns, shall be taxed for the- payment -of debts contracted under authority of law. License or privileged taxes imposed shall be graduated so as to secure a just imposition of such tax upon the classes subject thereto.’ c It is the duty of the Court'to construe, not make, the Constitution. That instrument authorizes municipal corporations to impose two kinds of taxes: ist. A general or ordinary tax. 2d. License or privileged, taxes. We must give force and effect to its provisions. A license or privilege tax has long been in use in this State. ‘Strictly speaking, a license of a trade or calling by a municipal corporation is referable to the police power possessed by such bodies, and implies autbority to prohibit the exercise of such business, except upon conditions having reference to-some end of police regulation. In its simplest form of exercise, as when employed solely for the purpose of regulating avocations of a class tending to disturb public order, health -or- morality,' it is a power totally distinct from that of imposing taxes for the purpose of raising revenue. It has, however, been long employed for the purpose of imposing on a class of avocations to which the exercise -of that power particularly relates, embracing places of public entertainment and amusement, taxation for the purpose of revenue of an extraordinary character, based upon the idea that avocations of that class should contribute specially to the support of the government in excess of the burdens borne by the productive industries. In this way it becomes -one of the customary modes of raising revenue. The extension of this mode of raising revenue beyond the sphere of avocations to which the power of police regulation properly related, where circumstances of a peculiar nature rendered it requisite that each particular avocation should have its own rate of taxation, was natural where taxation had divided itself into two methods, the one embracing those subjects of taxation that are capable of being reached by means of an uniform rate, and the other such as could be treated in no other way than by subdivision into two distinct classes, and imposing a separate rate on each of such classes. Avocations of the class to which the power of public regulation properly relates, naturally fall within the class or subject of taxation last named, and the license and form of collecting special taxes, have been frequently extended to embrace all subjects of taxation calling for special rates of taxation.’ State v. Columbia, 6 S. C., 6. See, also, Information v. lager, 29 S. C., 438, and other cases cited. I have cited this case, State v. Columbia, supra, as showing the origin and growth of license taxes, for two reasons. As this was the only adjudged law of this State, we must assume that the words ‘license or privileged taxes,’ as used in the Constitution, refer to, and was intended to refer to, licenses and license taxes as they existed at the time of the adoption of the 'Constitution. Not only in the law, but also in its popular meaning, a license tax was well understood. The second reason for the above citation is, that it was suggested and argued that the words of the Constitution might and should be construed as relating to the police powers of municipal corporations, and not for the purpose of’ raising revenue. If there was any doubt upon this subject (and there was none), the Constitution has dissolved that doubt now. I hold that the Constitution authorizes and empowers the imposition of licenses or privileged taxes for the purpose of raising revenue, and that, so far as the section under consideration is concerned, the police' powers of municipal corporations are in no wise changed. The ordinance in question provides : ‘Banks $50; cotton factory $75.’ The complaint alleges that the ordinance ‘is illegal, oppressive and absolutely null and void, and is unconstitutional, in that- it .is levied for the sole purpose of. raising revenue to meet the current expenses of the city, as said.ordinance so declares, and it imposes a tax' upon .certain citizens of the city of Abbeville, which is not uniform- either in respect to person or property, said ordinance putting a tax of $50-upon each bank, when their total capital only amounts to about $75,000 each, and only charging' the Abbeville Cotton Mill $75, -when their capital is $500,000.’ Passing by the-allegations as to the unconstitutionality of the ordinance, as set: forth in the above quotation, and which have already been discussed, we will consider the allegations alleging illegal discrimination, as illustrated by the bank and the cotton-mill. The underlying error in the complaint, and tihe arguments ir, support of its allegations, is in assuming that the requirement in the first sentence of art. VIII., sec. 6, viz : ‘said taxes to be uniform in respect to persons and property,’ apply to the last sentence in said section, in reference to licenses. If such were the fact, why did not the framers of the Constitution so declare? It would have been the most natural and easiest provision to have incorporated ‘license or- privilege taxes’ in the first sentence, and have left it subject to the requirements of said sentence. But the framers'of the Constitution not only did not do so, but also took further, different and affirmative action in regard to licenses, as manifested in the plain language of the last sentence of said section.</p> <p>“When it is suggested and argued that the ‘license or privileged taxes’ should be graduated according to the value of a plant, the income or the value of the product and sales, the answer is, the Constitution does not so provide. Bet us construe the word ‘classes’ in the last line of said sec. 6. We might speculate as to the meaning of this word, because, standing alone, it might be properly construed as referring to persons or property, one or both. Taking into view the Constitution and statutes of our State, as construed by our Courts and as shown by the practice in this State, I think that the legislation now in force is a reasonable and practical construction of the word ‘classes.’ The Constitution permits the General Assembly to empower cities and towns to impose license or privilege taxes upon ‘classes,’ but when a class is ‘subject thereto,’ the tax must be graduated, &c. In sec. 12 of the ‘act to provide for the incorporation of towns, &c.,’ 22 Stat., p. 71, it is provided that the city council may ‘require by ordinance the payment’ of a license or privilege tax ‘by any person or persons, corporation or corporations, engaged or intending to engage in any calling, business, occupation or profession.’ The ‘classes,’ therefore, must be composed of persons or corporations engaged or intending to engage ‘in any calling, business, occupation or profession.’ A member of a class, as used here, may be thus defined: 1st, a person or corporation; 2d, a calling, &c., and 3d, that person or corporation engaging in that calling, &c. " There can be no doubt that a cotton mill and a bank belong to different classes or, certainly, that the council had the power to put them in different classes. Is the ‘discrimination’ between the mill and bank oppressive? That is a mere allegation of the complaint, denied by the answer, and supported by no evidence. The city council is authorized and empowered to determine such matter. In the absence of proof-to the contrary, I must assume that the city council so graduated these license taxes as to secure a just imposition of such taxes upon the mill and the bank. It is not for the plaintiff, or any one of those who have come into this action, to decide such an issue. In view of the many acts and ordinances in this State permitting and regulating license taxes, the amounts charged in the ordinance in question seems neither oppressive nor illegal. The council in ‘graduating’ these taxes ‘so as to secure a just imposition of such tax upon 'the classes subject thereto,’ may, and I assume did, take into consideration, the calling, business, &c., the character of such calling, the value of same, and everything connected therewith. Again, and while upon the subject of ‘classes,’ I will refer to the provisions thereof in reference to merchants. It reads : ‘Merchants shall pay. license according to the following schedule of gross sales and prices upon sworn returns: sales amounting to $1,000 or under, the sum of $i; on each additional $1,000 of sales or fractional part thereof, the sum of fifty cents.’ This provision has long been in use in this State. I think and so hold that this provision is constitutional. . The objection that the requirement as to ‘sworn returns’ is illegal, because inquisitorial, and calculated to expose one’s business, is wanting in support. The rule is, all 'taxpayers .swear to their returns of taxable property, and in this instance, the merchants are required to do what other taxpayers do. The law lias, wisely and necessarily, left much to the legal discretion of town and city councils. There are poor and rich merchants, it might and would be .unjust to charge each the same privilege tax; therefore, the license is a ‘just imposition’ when each merchant is called upon to pay according to the amount of his ‘gross sales and prices.’ If there is, or can be, any objection to this method of licensing merchants, it is easy to place another construction upon this provision which makes it legal and valid. Merchant is a general name. There are many kinds of merchants, grocers, dry goods, &c. One or more classes of merchants, dealing in one commodity, might be put into one class; while other merchants, dealing in other commodities, might be put in another class. This might be the only way in- which -the tax imposed on each class could be graduated -so as to secure a just imposition of such tax upon each of said classes. This would be legal. So, in securing a just imposition of a license tax, it may be necessary to subdivide persons engaged in one calling into classes, and'tax each included in such subdivision so much. These subdivisions, so called 'here merely for the purpose of illustration, would, under the law, be each -a class. We must have regard to the substance, and not the form of-the ordinance. It really makes classes o-f such .merchants according to their sales. I do not mean to hold, that the same merchant could be taxed -double, or twice, upon the same calling or business. For instance, a druggist is a merchant; but he could not be taxed upon his gross sales first as a merchant and then, as a druggist. That would be illegal. Again, there are ‘classes’ upon which a graduated tax, according to incomes or gross sales, or moneys collected, cannot be imposed. The ‘.calling, business, occupation or profession’ of such classes may be of such nature as to preclude such a method or system. In such cases, I think that the city council had the legal right, in their legal discretion, to impose a fixed tax upon each member of each of such classes, and make each of such members pay a tax similar in amount and in other respects.</p> <p>“Paragraph VIII. of complaint alleges: ‘That said license ordinance is also illegal, null and void, and contrary to sec. 5. of art. I., of the Constitution of this State, in that said ordinance, in section i of said ordinance, provides, “That no person, firm or corporation shall engage in, prosecute or carry on any trade, business, occupation or profession hereinafter mentioned, without having first paid a special license tax therefor, as follows: to wit, &c.,” and section 4 of said ordinance provides as follows: “The city council hereby reserved the right to refuse or revoke any license for any cause which may seem to it just,” thus putting it in the power of the city council of Abbeville to abridge the privileges of the citizens of said city, and deprive them of their liberty and property without due process of law, and to deny to any one that they may see fit the equal protection of the laws.’ I think that section is, as alleged, invalid and illegal. The city council legislate by way of ordinance, and can only ordain such ordinances as the law permits them to make. There is no law authorizing said council ‘to revoke any license for any cause which may seem to it just.’ There may 'be causes, legal causes, for which council might revoke a license; but certainly ‘any cause’ which in its opinion, irrespective of law, may seem to it ‘just,’ is beyond the limits of its power, and, therefore, without warrant of law. But this is a speculative question. Council has not ‘refused’ or ‘revoked’ any .license, for any cause ‘which seemed to it to be just.’ It will be time enough to consider such refusal or revocation when that issue is presented. Again, this sec.' 4 may be stricken out, -and it -would not destroy the entire ordinance, nor seriously interfere with the enforcement of said ordinance.</p> <p>“The complaint, paragraph X., alleges : ‘That the said city council has ordered that the said ordinance go into effect on the first day of October, 1899, and threatens to fine or imprison all persons who do not pay said tax on or by the first day of November, 1899.’ There is no legal reason why the said city council, under the ordinance in question, should not carry out the ‘threats,’ or the provisions of said ordinance, and ‘fine or imprison’ the persons referred to. I shall not prolong this decree by a full discussion of this question. I think that is settled, and I shall refer to the statutes and a few of the cases upon this subject. The charter of the city of Abbeville, above cited, in sec. 8,. which deals with licenses, provides: ‘and the said city council may enforce the collection of said license fees, which shall.be turned into the city treasury.’ The act of 1896, to provide for the formation of towns, &c., in sec. 12 (22 Stat, p. 71), authorizing council to • impose certain license taxes, is as follows: ‘and said town council are hereby authorized and.empowered to pass such ordinances as are necessary to .give full force and effect to this ' section, and to punish -delinquents thereunder.’ There may be other statutory or constitutional law to the same effect; 'but I shall refer to no other. See, also, State v. Hayne, 4 S. C., 403; Information v. lager, 29 S. C., 438; Charleston v. Oliver, 16 S. C., 47; Information v. Oliver, 21 S. C., 319. The charter -of Abbeville and the act for the formation of towns, &c., authorize and empower the council ,to ordain the penalties and punishments prescribed in the ordinance.</p> <p>“Before taking up such of the allegations of plaintiffs as is- necessary, let us glance at the law. ‘A license tax cannot be deemed -unequal because it reaches one occupation only, -if it reaches all who follow that occupation.’ State v. Har~ rington, 34 Law Rep. Ann., ioo; F% parte Williams, 21 L. R. A., 783; Banta v. Chicago, 40 L. R. A., 611; Haskel’s Case, 32 L. R. A., 527 and 529. ‘Imposing on laundrymen the payment of a license fee of $15 for a steam laundry, $10 for every male person in the business other than that of a steam laundry, and $23 for a male laundryman employing one or more other persons, does not grant a monopoly or have a prohibition effect.’ State v. French, 30 L. R. A., 415. The brief to this case is full and instructive. Vol. 13, Ency. of L., 314, et seq., and notes.</p> <p>“The plaintiff is a resident of the city of Abbeville,, and engaged in two callings or kinds of business. He is a merchant and a cotton buyer, but he alleges that he buys cotton for C. E. Johnson & Co., of the State of North Carolina. The same man or corporation may engage in two separate and distinct callings, occupations or kinds of business. If so, he or it must take out the proper license for such, and pay the proper taxes therefor. Plaintiff is entitled to no relief, so far as pertains to his being a merchant, and being required to take out and pay for a license to carry on that business. The license required of plaintiff as a cotton buyer depends' upon the ordinance. ' It is as follows: ‘Cotton buyer except for local mills, $10.’ I think that this provision is illegal. Excepting buyers for local mills renders the provision void. A buyer of cotton for local mills is not entitled to exemption. Excepting the buyers for local mills is not graduating the tax, it frees him from the payment thereof, and, consequently, the tax does not apply to all persons of that class equally. This provision is illegal.</p> <p>“After the service of the original complaint, but before the service of the amended complaint, and the answer thereto, the defendant, the city council, by an ordinance, duly amended the ordinance mentioned and alleged in the complaint. Among said amendments -the following appears : ‘In lieu of “cotton buyers except for local mills,” the wrords “except for local mills” are hereby stricken out,’ so that the ordinance as amended reads, ‘Cotton buyer, $10.’ It' 'was argued that the answer could not set up the said amended ordinance to the allegations of the complaint, because the ordinance was amended after the service of the summons and original complaint. Defendant contends that it can plead the amended ordinance because it was amended prior to the service of the amended complaint, and before defendant had answered. It will be noted, that this is not the case'of amending an answer; because -the original answer pleads the amended ordinance. I shall consider the amended ordinance as 'before the Court, and for the following, among other reasons : The complaint seeks to enjoin the defendant from the collection of license taxes, and also from imposing fines or inflicting punishment upon plaintiffs for failure to comply with the provisions of the ordinance. The complaint deals, therefore, with defendant’s jurisdiction in criminal matters, its power to punish by fine or imprisonment. It is clear that the defendant could not punish plaintiff under an ordinance repealed at the time of the trial. State v. Carter, 28 S. C., 1. The amended ordinance took the place of the old. As held, the original ordinance was illegal, and there was no legal ordinance in this particular until the amended ordinance was adopted. So that, now, it is a purely speculative question as to- the original ordinance. It does not now exist, whether its non-existence is due to the inherent illegality or because it is repealed, is a matter of no consequence. Plaintiff is in no danger from the original ordinance; but I will enjoin the enforcement of this particular provision therein. I do not mean, however, to enjoin the enforcement of the amended ordinance; because, except as pleaded in the answer, it is not before me for adjudication. The construction upon that ordinance is not involved'in this action.</p> <p>“Among the parties who have been made plaintiffs in this action, under the order of the Court, are a number of lawyers. They allege that they are taxpayers and residents of the city of Abbeville, and that ‘they are discriminated against in the ordinance imposing said license tax.’ * * * ‘That the tax imposed upon attorneys at law is a license of $5 on some attorneys, and $7.50 on others.’ The provisions of the ordinance in reference to lawyers are, ‘Lawyer, whose income does not exceed $1,000, each $5.’ ‘Lawyer, whose income is from $1,000 to $2,000, each $7.50.’ These words were, by the amendatory ordinance above referred to, stricken out, and the words, ‘Lawyers, each $5,’ inserted in lieu thereof. I need not repeat what I have said in reference to this amendatory ordinance or the effect thereof. But, in passing, it may be well to say, that I can see no infirmity in the ordinance as it originally stood. If merchants be classified according to the amounts of business done by them, why should not the same rule be applied to lawyers ? The principle is the same, and t)he facts analogous. But the classification is a matter left to the legal discretion of the city council. It could put all lawyers into one class, or could divide them into two classes, and, in either instance, the presumption would be that the action was legal. However, as the original ordinance, by act of council, has ceased to be of force, I will enjoin any attempt to enforce said original provision, and, as said, leave the amended ordinance alone. .</p> <p>“A. M. Hill & Sons came in as plaintiffs. Their alleged grievance is that they ‘Are required to pay as livery stable keepers, and are required to pay a further tax on their hacks, which are simply a part of their livery business, while this tax is not put on other persons running a livery business.’ The ordinance provides for: ‘Street hack or carriage, $5; street wagon or dray, two horse, $5; street wagon or dray, one horse, $2.50; stable, livery, sale and feed and running hacks and drays, $35; stable, livery, sale and feed, $25.’ As to the allegation that the tax imposed upon Hill & Sons ‘Is not imposed on other persons running a livery business,’ it is denied by the answer, and there is no proof in support thereof, except such, if any, as appears upon the face of the ordinance. I can see no illegality in the provisions above cited. They are all in favor of the citizen. If a man wants to run a ‘street hack,’ or a ‘street wagon,’ or a ‘street dray,’ and not run a livery stable, he can do so; because such hacks, carriages, wagons and drays are each put in a separate class, and a certain tax provided for each. If another man wishes to run a ‘stable, livery, sale and feed,’ and not run hacks and drays, he can do so; because he is included in a class established 'by the ordinance. If a third man wants to engage in all of these occupations, he can do so; because this ordinance establishes one general class authorizing him to do so; but for this he must pay a higher license tax.</p> <p>“As to the plaintiff, J. L. Simpson, it is alleged in the answer, and was admitted at this argument, that he was summoned before the city council to show cause why he had not paid a license tax under the provision of the ordinance, ‘Agents, sewing machines, $15,’ and his case was dismissed upon his own statement that he is not doing business as a sewing machine agent in the city of Abbeville. He, therefore, has no standing in the case. But as the parties wish to test this ordinance, I hold a sewing machine agent may be legally put in a separate class by the citv council, and that ‘other agents for retailing goods only,’ for example, ‘agent for merchant tailor, manufacturer,’ may be put into another class by the city council, and a different tax imposed on each. I do not nielli to say that council could abuse their power in this or any other respect. I am speaking of the legal discretion of council, and I must assume, as there is nothing to rebut that presumption, that council acted with legal discretion in the premises.</p> <p>“J. W. McKee and E. H. Richey attack the ordinance because they allege that they are charged a license tax for selling meat in the city of Abbeville, although they are farmers and stock raisers and do not reside in the city of Abbeville, and have a right to sell their products in said city. Of course, the city council could not, by ordinance or otherwise, violate the provision of the ‘act to amend the charters of cities and towns in regard to the sale of meat,’ approved February 7th, 1896, see 22 Stat., pp. 91, and City Council v. Roberts, 55 'S. C., 374. The words above stated, setting out the grievance .of McKee and Richey, are not sufficient to bring them within the terms of said act. These words are denied in the answer. The burden of proof was upon McKee and Richey, and there is no proof in support of their allegations even as made. It was admitted upon the argument that these parties sold meats not ‘produced or grown’ by them in the city of Abbeville.</p> <p>“J. R. Hill complained that he is charged a tax of $5 as a ‘cotton weigher,’ under the ordinance, ‘and yet’ the city council allows the cotton mill ‘to weigh all the cotton they may choose to weigh without any license whatever.’ This is a very broad and loose allegation. In this matter the return to the rule alleges, ‘There is a license of $5 imposed on all cotton weighers, and the cotton mill is not exempt from tax as a cotton weigher. That this respondent is informed that the cotton mill does not weigh cotton for the public or for compensation, and that the said J. L. Hill weighs a large part of the cotton purchased by the mill.’ All of the pleadings in this case, to wit: ‘amended complaint, petitions to be made parties, returns to said petitions, orders of injunctions, answer, etc., were presented to the Court at the hearing, and submitted with the record. Counsel in their arguments referred to and used these papers, and save in one or two matters, viz: the facts in regard to J. W. McKee and E. H. Richey, as butchers, and possibly one or two other facts not involved, treated these papers as evidence. There was no testimony taken, and the case was heard upon the pleadings and papers. J. L. Hill has no legal cause of complaint, because as I construe the ordinance a ‘cotton weigher,’ in the ordinance, means such an one as weighs for the public or for compensation, and not a person or corporation weighing their own cotton, or cotton purchased for his or their own use.</p> <p>“J. L. Roche’s allegations as to the provisions of the ordinance are as follows: ‘Cotton seed buyers, except for local mills, $10,’ are sustained, for reasons above, and is entitled to an injunction against the enforcement of this provision.</p> <p>“J. A. Dickson’s objections are overruled. See authorities cited. Having a license from State to practice dentistry-does not exempt him from the provisions of the ordinance.</p> <p>“I have already considered the questions of requiring the same person, engaged in two occupations, to pay a license tax for each occupation.</p> <p>“A person who, under the ordinance, is liable to a license tax, cannot legally object to paying same; because a license tax is not imposed upon some other person engaged in a different occupation. The city council is not required to charge every person engaged in any occupation, business, calling or profession a license tax. If I have overlooked any material allegation as alleged by any one of the plaintiffs, it is accidental, due to hurry, and because of the pressure of official duties. I have not, by name, taken up the particular case of each plaintiff; but have grouped their allegations, and then considered all of the real issues in the cause. As I hold that the ordinance, as an entire instrument, is not'void, but that certain provisions thereof are void, it would be improper to pass upon provisions of said ordinance which does not affect any of the plaintiffs, and are not properly before the Court for determination. This case, and the judgment herein, cannot bind persons not parties to the cause, and as to such persons no opinion is expressed. I must confine this judgment to the parties and issues before the Court.</p> <p>“Wherefore, it is ordered, adjudged and decreed, that the defendant, the city council of Abbeville, their agents, officers and servants, be, and hereby are, perpetually enjoined and restrained from enforcing or attempting to enforce the following provisions of the license ordinance herein before referred 'to, to wit: i. ‘Cotton seed buyers, except for local mills, $io.’ 2. ‘Cotton buyers, except for local mills, $io.’ 3. ‘Lawyers,' whose income does not exceed $i,ooo, each $5.’ 4. ‘Lawyers, whose income is from $1,000 to $2,000, each $7.50.’</p> <p>“It is further ordered, adjudged and decreed, that the summons and complaint herein be, and hereby is, dismissed as to all the plaintiffs, saving and excepting such of the plaintiffs as are affected by the foregoing order and judgment; but as to such plaintiffs coming within the relief adjudged, it is retained; further, that each and all of the restraining orders heretofore granted in this action be, and hereby are, revoked, vacated and discharged, except as-the same are made perpetual by the judgment herein; and it is further ordered, that each of the parties hereto pay his or its own costs and disbursements.”</p> <p>From this decree, the plaintiffs appeal.</p> <p>cite: The act of 1897, p. 464, taken with the act of 1896, p. 67, does not confer, on city of Abbeville pozver to pass this ordinance: 49 S. C., 337; 22 Fed. R., 701. If the city has thereunder such pozver, then it is null and void: Con., art. VIII., sec. 6; art. X., sec. 1. Act of 1897 refers to more than one subject, and is unconstitutional: Acts of 1896, No. 37; 3 Park. Co. Rep., 299; 35 N. Y., 452. It is also contrary to sec. 1, art. VIII., of Con.</p> <p>cites: Has city council of Abbeville the power to enforce license taxes: 21 Stat., 1134; 22 Stat., 464, 67; 23 Stat., 70. Act of 1891 is not unconstitutional, as it does not relate to more than one subject: 13 Mich., 481; 39 S. C., 137; 36 S. C., 135; art. III., sec. 34, Con.; art. VIII., sec. 6. License taxes have long since been in use in this State: 6 S. C., 1; 29 S. C., 438; 21 S. C., 325 ; 40 L- R. A., 611. Has this power been exercised in conformity to the Constitution, and have such taxes been properly graduated: Art. VIII., sec. 6, Con.; 30 L. R. A., 427; 32 L. R. A., 529; 32 Minn., 364; 30 L. R. A., 432; 34 Am. Rep-, 743J 16 Cal., IJ9; 31 Kan., 157; 3° R- R- A., 419; 21 L,. R. A., 415; 40 L. R. A., 617; 34 L. R. A., 100.</p>

<p>Before Aldrich, J., Lexington, October, 1899.</p> <p>Action for damages for negligent killing, by Debby Risinger, administratrix, against Southern Railway Co. From order granting nonsuit, plaintiff appeals.</p> <p>The former cite: It is negligence to run a train at a reckless rate of speed through a town: 4 Am. & Eng. R. R. Ca., 552; 8 Id., 267, 443, 280; 34 Id., 78. Place of accident zvas “traveled place:” 47 S. C., 375; 34 S. C., 444; 47 S. C., 332; 41 S. C., 20. Negligence to run train across highway before arriving at point of accident without giving statutory signals: 52 S. C., 326; 71 Mo., 51; 123 N. Y., 648; 41 Fed. R., 190; 16 L. R. A., 129. Negligence is question for fury: 54 S. C., 509; 51 S. C., 460; 25 S. C., 30.</p> <p>cite: Past running of a train is not negligence, per se: 34 S. C., 444; 7 S. C., 402; 64 Mo., 267; 72 Mo., 50; 74 Mo., 594; 85 Tenn., 240. Place of accident zvas not “traveled place,” and secs. 1685 and 1692 do not apply: 34 S. C., 444, 292; 41 S. C., 1. Nonsuit is proper, zvhere there is no evidence tending to show negligence: 57 S. C., 433; 45 S. C., 278.</p>

Before Gage, J., Sumter, June, 1900. Action on contract by Henry G. McKagen against E. T. Windham, William M. Sanders, Henry C. Cuttino, and J. Mason Reames. Erom Circuit order setting aside order of magistrate granting a new trial, defendants appeal. cite: Answer does not admit that defendants contracted with plaintiff in their individual capacity: 32 S. C., 243. An officer making a contract in his official capacity cannot be held individually liable: 2 Am.

Before Blnlt, J., Chesterfield, November, 1899. Action for possession of land by Jas. F. Sutton against E. C. Clark, J. M. Clark, W. A. Clark, G. N. Clark, Eleanor Knight and Mary Knight. From verdict and judgment for defendant, plaintiffs appeal. cite: Objection that action was not commenced within statutory period must be taken by answer: 9 S. C., 94; 16 S. C., 386; 3 S. E. R., 63. Defendant must show that plaintiff was not in possession: 14 S. C., 189.

Before Aedrich, J., Fairfield, March, -igoo. Petition in probate court by Martha Amanda Robertson against James R. Curlee. From order refusing motion of defendant to require his warrantors, Thomas K. Elliott and Thomas H. Ketchin, to come in and defend their title, the defendant and his warrantors appealed.

<p>Before Watts, J., Anderson, February, 1900.</p> <p>Action for damages for poisoning a setter dog by C. E. Cobb and W. H. Humphreys against A. P. Cater. Prom judgment for defendant, plaintiffs appeal.</p> <p>The former cite: Malice may be shown from acts: 15 S. C., 413; 2 Rioh., 179. Dogs are property: 54 S. C., 481; 55 S. C., 322. As to right of one to put out poison: 35 Am. Dec., 96; 141 Mass., 179.</p> <p>Mr. Brnest B. Cochran, cites: Killing dogs not subject to same rule as other animals: 10 Rich. D., 52; 33 S. E. R., 466; 100 Mass., 136; 6 Pa. St., 318; 24 111. App., 270; S3 N. H., 399; 14 Tex. Ct. App., 200; 11 Lea., 528; 23 Wend., 354; 31 Conn., 121; 4 Cow., 151; 9 Johns., 233. No liability if trespassing dog gets poison: 34 J. P., 406; 70 Tex., 670; 20 la., 378; 1 Cow., 78.</p>

<p>1. Evidence — Secondary'—Written Instrument. — Secondary evidence of a written contract may be admitted without notice to the other side to produce, where it appears to have been lost while in the possession of the party testifying.</p> <p>2. Ibid. — Parol—Ibid.—Collateral Contract. — Parol evidence is admissible to show contents of a written contract collateral to the questions involved.</p> <p>3. Resulting Trust arises in favor of a party paying the purchase money of land, even where the conveyance is made to another by the knowledge and consent of the payer.</p> <p>4. Ibid. — Advancement—Illegitimate Child — Presumption.—Payment of purchase money and instructions by mother to convey land to illegitimate child, raises presumption of advancement, but it is rebuttable.</p> <p>S- Fraud — Husband and Wipe. — Instructions by wife to convey to daughter lands paid for by her, so that husband’s creditors could not intermeddle with it, is no fraud on her part.</p>

<p>Before IT011. J. H. Hudson, * special Judge, Barnwell, March, 1900.</p> <p>Action on contract by Jennie IT. Brown against Annie P. Easterling. Defendant demurred. Demurrer sustained, but plaintiff allowed to serve amended complaint in twenty days. Plaving failed to serve such complaint in time, she moves the succeeding Judge on following affidavits to grant her this permission :</p> <p>“Personally came J. J. Brown, who says on oath that he was and is "the attorney of record in the above cause, and had associated with him Robt. Aldrich, Esq. That when the complaint was read by deponent at the November term, 1899, of this Court at Barnwell, an oral demurrer was interposed by defendant’s attorney, and the oral demurrer was sustained. The Judge, however, held that plaintiff was entitled to amend her complaint, against the protest and arguments of defendant’s counsel. That while it was proper and right that the order allowing plaintiff to amend her complaint should have been drawn by plaintiff’s attorney, the defendant’s attorney undertook to prepare the order, the Judge refusing to sign the first order, drawn by plaintiff’s attorney, and requiring such changes therein before signature as had been stated in rendering his decision. That no time for amending and serving the amended complaint had been spoken of by his Honor, or fixed or alluded to, and it being something wholly unusual and out of place for the defendant’s attorney to fix the time in which a plaintiff should prepare and serve an amended complaint, the deponent was totally and wholly surprised'when he undertook to serve the amended complaint, to be informed by defendant’s attorney that the time was past, and more than twenty days had expired. That the associate of deponent, Robt. Aldrich, had requested deponent to allow him to see the amended complaint before it was served. That deponent had prepared the amended complaint and was ready to serve it when he submitted it to his associate. That the time was soon after the end of the November term of Court, but the said Robt. Aldrich was engrossed in the business usually accumulating immediately after the term, the preparation for the Supreme Court,- and the regular session of the legislature, so that he could not give the matter immediate attention, and for some days the service of the amended complaint was delayed. That this deponent went to said Robt. Aldrich five or six times, requesting him to examine the amended complaint, so that it might be forthwith served and possibly a trial be had at the extra term to be held in February. That deponent was satisfied 'his associate could not give that deliberate and careful attention as was necessary under the circumstances to the amended complaint, and he, therefore, awaited with impatience the opportunity for proper investigation. If this deponent had known that any time had been fixed in the order for amending and serving the said complaint, he would not have hesitated to serve it, but 'he was totally ignorant of any time being fixed, it being unusual, almost without precedent, and likely to take the party to whom the pleading belonged by surprise. Deponent further says he is very anxious to try the case, and has been since it has been on the calendar. That only his client is being injured or damaged by delay, the plaintiff claiming that the defendant is in possession of her rights and property without paying for them, and that plaintiff will be ready and insist on trial at the ensuing March term of this Court. J: J. Brown, Plaintiff’s attorney. Sworn to before me this 23d day of Eebruary, 1900. W. Gilmore Simms, [l. S.] C/ C. P.”</p> <p>“Before me personally appeared Robt. Aldrich, Esq., who, being duly sworn, deposes and says: That he is associated with J. J. Brown, Esq., as plaintiff’s attorney herein. That the case was called for trial at the November term of this Court, and proceeded with. An oral demurrer was interposed by defendant’s attorney, and the same was sustained by the presiding Judge, his Honor, D. A. Townsend, and the plaintiff was allowed to amend her complaint by the ruling of the Judge. That there was nothing said by the Judge as to the time in which the amended complaint was to be served, and it constituted no part of the ruling of the Judge in the discussion of the motion to be allowed to amend. That immediately after the adjournment of the November term of Court deponent became very much engrossed in the business of his office, which is busiest at that season, as attorney for the bank and two railroads, and in getting ready for the Supreme Court, in which he had five appeals, and preparing to go to the legislature, of which he is a member; and accordingly when his associate, Col. Brown, brought him the amended complaint to read and consider, which he did a short time after the adjournment of the November term, deponent, not supposing there was any need for expedition in the matter, laid it by for more urgent matters. Finally, when he did get an opportunity to read and consider it, 'and turned it over to Col. Brown for service, he was shocked to learn that defendant’s attorney claimed that it came too late, as the order allowing the amendment limited the time in which it should be served to twenty days from the date of the order. That this deponent does not remember being in Court when the order was signed; does not remember to have heard it read, and took his impressions of it from the rulings of the Judge upon the motion to amend, in which nothing was said about time. That the failure to serve the complaint within the time was due to the facts as stated, and operates as a surprise to plaintiff’s attorneys, and they respectfully submit herewith a case of excusable neglect. That nothing is lost to defendant by delay of plaintiff, and the plaintiff is very anxious"to try the case, and will do so at the next term of Court, if allowed to serve her complaint as deponent is informed. Robt. Aldrich, Plaintiff’s attorney. Sworn to before me this 23d day of February, 1900. W. Gilmore Simms, [l. S. ] C. C. P.”</p> <p>From order permitting plaintiff to file an amended complaint after expiration of time provided therefor, the defendant appeals.</p> <p>cites: Discretion exercised by Judge in permitting the amendment and imposing terms cannot be disturbed, unless it deprives a party of a substantial right: 9 S. C., 334; 18 S. C., 305; 26 S. C., 474; 31 S. C., 588; 32 S. C., 57; 28 S. C., 181. Upon failure to serve amended complaint, defendant had right to enter judgment against plaintiff: 30 S. C., 451; 31 S. C., 427.</p> <p>cite: Judge Hudson had the authority to grant further time: 25 S. C., 390; 30 S. C., 458; 31 S. C., 428; Code, 195.</p>

<p>Before Aldrich, J., Union, June, 1900.</p> <p>Action in the name of the State of South Carolina ex rel. J. N. Elliott, J.- A. Elliott, W. C. Elliott, B. M. Elliott, Rinnie V. Elliott and J. H. Stovall against W. T. Jeter, J. Woods Jeter and McA. Pittman, executors of E. C. Jeter. From order sustaining demurrer and dismissing complaint, plaintiffs appeal.</p> <p>cites: If partition sale was made by judge of probate before November 27, 1878, he is officially liable for proceeds, and his successors receiving money from predecessor are also officially liable: 25 S. C., 275; 49 S. C., 510; 1 Wall., 175; 16 How., 432; 18 S. C., 355; 3 M. & S., 396.</p> <p>cite: Sureties on bond of public officer are not liable for any defaults out of line of his official duties: 76 N. W., 474; 10 Rich., 442.</p>

Before Keugh, J., Saluda, August, 1900. Action in claim and delivery by F. G. Cromer against P. B. Watson. From Circuit order dismissing appeal from magistrate court, defendant appeals. cites: As to indorsing direction to officer to take property: Code, 71, sub. 12. Process in claim and delivery must be served by qualified constable: 17 S. C., 1; Rev. Stat., 901; Con., art. V., sec. 20; Code, 71, subs, 12 and 13. As to change of venue: 22 Stat., 13.

Before Gage, J., Bamberg, spring term, 1900. Action for possession of land by Eugenia M. Rice against E. M. Bamberg. From judgment for defendant, plaintiff appeals. cite: Court must have jurisdiction of infant to bind him: 17 S. C., 435; 23 S. C., 166; 24 S. C., 376. Court will indulge in no presumptions against the record nor the averments' thereof: 34 Cal., 394; 45 Cal., 464; 46 Cal., 636; 13 Kan., 471; 4 Or., 313; 18 Wall., 336.

<p>Before Watts, J., Abbeville, February, 1900.</p> <p>Foreclosure by M. E. Pruitt against F. V. Pruitt, J. T. McDill & Co. and James W. Wideman. The Circuit decree is as follows:</p> <p>“This is an action for the foreclosure of a mortgage of the real estate‘hereinafter described, executed by the-defendant, F. V. Pruitt, to ’the plaintiff on the 9th day of July, 1894, to secure his bond of even date therewith for $2,624, payable January 1st, 1895, with interest from date, payable annually, until paid in full, at eight per cent, per annum. The other defendants are junior creditors of the said F. V. Pruitt. The plaintiff indorsed a notice on the summons, directed to the said judgment creditors, that no personal _demand was made against them, and that if they answered, it must be at their own cost. Notwithstanding said notice, they filed an answer, in which they alleged that the said mortgage was executed for the purpose of evading the provisions of the assignment act, and was, therefore, void. They also- denied that there was a valuable consideration for the mortgage debt. The defendant, F. Y. Pruitt, did not answer. At September term, 1899, of the Court, Judge Gary made an order directing the master to take the testimony and report it to the Court. The master performed that duty, and the case came before me for hearing on the testimony so reported and the pleadings. After hearing the argument for counsel and upon a careful consideration of the testimony, I find as matters of fact: 1. That the mortgage sued on was executed by the defendant, F. V. Pruitt, to secure a debt due by him to the plaintiff for money borrowed by him from her, the same having been received by her from the estates of her father and mother. 2. That the said defendant in making said mortgage intended merely to give plaintiff security for a just debt. 3. That the said mortgage was not given as a means of transferring the property of the said F. V. Pruitt to the plaintiff or with the intent to evade the provisions of the assignment act. 4. That there is now due and unpaid on the said mortgage debt the sum of $3,971.</p> <p>“As conclusions of law I find: 1. That the said mortgage is bona üde, and is a prior and preferred lien to the judgments of the defendants, J. T. McDill & Co. and James W. Wideman. 2. That the plaintiff is entitled to a judgment of foreclosure for the full amount of her debt as found above. 3. That the said J. T. McDill & Co*, and James W. Wideman should pay so mudh of the costs of the case as was incurred by reason of their filing an answer to the complaint, to wit: the costs of the master and the per diem and mileage of the plaintiff’s witnesses. 4. That the said judgment creditors are entitled to have the homestead of the defendant, F. V. Pruitt, first sold, and the proceeds of sale applied to plaintiff’s piortgage debt. On motion of Ellis G. Gray-don, plaintiff’s attorney, it is, therefore, ordered, adjudged • and decreed * *</p> <p>From ffhis judgment, defendants, J. T. McDill & Co. and James W. Wideman, appeal.</p> <p>Mr. M. P. DeBruhl cites : As to the invalidity of the mortgage: 18 S. E. R., 145; 20 S. E. R., 405; Rev. Stat., 2146; 64 Md., 296; 52 S. C., 132; 30 S. E. R., 602; 49 Eed. R., 506. As to costs against appellant: Code, 152; 7 S. C., 207.</p> <p>cites: Mortgage not an assignment: 27 S. C., 285; 44 S. C., 194; 18 S. C., 425; 15 S. C., 58. Costs are zvithin discretion of Chancellor: 22 S. C., 265; 24 Q. C., 264.</p>

Before Aldrich, J., Laurens, September, 1900. Petition for dower by M. Adeline Garrett against Amanda Vaughn and Eugenia Bolt. Circuit decree affirming decree of probate court is as follows : “Benjamin Franklin Garrett, late of the county aforesaid, died on July 6th, 1899. Pie left of force his last will, which has been duly probated. His estate consists of about 140 acres of land, and personal property. The amount of the latter is not stated.

Before Buchanan, J., Lexington, June, 1899. Action by Manda Marshall and George Marshall against J. William Mitchell, as administrator with will annexed of Mrs. E- E. Fort, for services rendered deceased in her last illness by Manda. From Circuit order dismissing defendant’s appeal from judgment for plaintiffs by magistrate, defendant again appeals. cites: Plaintiff could not testify as to transactions and communications had with decedent: 47 S. C., 488.

Before Gage, J., Barnwell, April, 1900. Action for specific performance by D. F. Joyner and Nola O. Joyner against Fannie Hoffman, J. R. Mack et al. From Circuit decree in favor of plaintiffs, defendants appeal. Messrs. Hendersons and W. H. Townsend cite: As to making out contract: 25 Penn. St., 549; L. R.. 8 Ch. Div., 351; 7 App. Div. Sup. Ct. R., 166; 98 Fed. R.. 783 ; 73 Id., 619; 6 Eng. Rui. Ca., 155; 4 App. Ca., 311; 4j. Chan.

Before Gage, J., Aiken, winter term, 1900. Action for damages for personal injuries caused by negligence of defendant, by John T. Kennedy against Southern Railway Company. From judgment for plaintiff, defendant appeals. The Judge charged the jury as follows: “This is an action by John T. Kennedy against the Southern Railway Company for damages.

Before Gary, J., Charleston, April, 1900. Action by W. B. Chisolm and E. B. Addison, carrying on business under name of Empire Mining Co., v. Propeller Towboat Co. of Savannah, for damages for loss of a barge and cargo in towing. From judgment for plaintiff, defendant appeals. cite: The C. C. of U. S. may vacate at the same term of the Court an'order remanding a case to State Court: 104 U. S., 415; 12 Wheat., 9; 117 U. S., 665; 130 U. S., 301; 10 Pet, 480; m U. S., 198.

Before Benet, J., Saluda, May, 1900. Claim of M. A. Whittle against Saluda County for fees for serving subpoena writs on defendant’s witneses in misdemeanors. From Circuit order reversing action of‘county board of commissioners in disallowing claim, defendant appeals. cites: 8 Rich. R., 295; 35 S. E. R-, 203; Crim. Code, 45; Rev. Stat., 676, 2561.

Before J., Barnwell, February, 1900. Action by Jones H. C. All against C. M. Hiers for penalty for accepting usurious interest. Plaintiff appeals. No citation on point decided. cite: Appellant must show what verdict was rendered thereon, otherwise Ms appeal must be dismissed: 40 N. E., 797; 33 S. E. R., 454; 42 S. C., 183; 42 S. C., 369.

Before Buchanan, J., Greenville, July, 1900. Action for possession of land by Mary J. Cook and others against Liney E. Cooper and others. From judgment for defendants, appellants appeal. cite: Mrror to rule out evidence as to considerations of deed: 1 McC., 5141 2 Hill, 404; 32 S. C., 164; 57 S. C., 413; 14 Johns, 410; 20 Johns, 341; 17 Mass., 257; 37 Mass., 250; 94 U. S., 306; 24 S. C., 1; 30 S. C., 467.

<p>Before Klugh, ]., Cherokee, October, 1900.</p> <p>Action in Common- Pleas by Christina Gaffney against Samuel Jefferies, and thirty-five other actions of like kind by same plaintiff, each against different defendants, for dower in tract of land sold off in part in town lots by husband’s alienee. The following is the Circuit decree:</p> <p>“I hold that the plaintiff is entitled to dower;'but as the husband’s seizin was of an undivided interest in the whole 1,219 acres, and as the wife is dowerable only according to the husband’s seizin, it must follow that the plaintiff’s claim of dower attached to every portion of or particle of the land of which her husband was seized, of an undivided interest proportionately to his interest. That is to say, she is entitled to one-third of three undivided sixteenths, or to one-sixteenth of every particle, or every acre, or whatsoever may be taken as the unit of the entire 1,219 acres. It cannot be said that she is entitled to have her entire claim of dower assigned to her in the lands of which Samuel Jefferies is now seized, or of which he became seized upon the partition, for that would be to hold that she was dowerable according to the seizing of Samuel Jefferies rather than according to the seizing of her husband. Thomas E. Gaffney was never seized of other than an undivided three-sixteenths interest in the land which was afterwards set off to Samuel Jefferies in severalty. It does not appear that Samuel Jefferies assumed the entire burden of plaintiffs dower at the time of the partition; in the absence of some stipulation to that effect, the Court has no right to add such a provision to his contract of partition. The conclusion is inevitable that plaintiff is entitled to but one-sixteenth of the land which passed into the sole possession of Samuel Jefferies. It will be observed that at the partition in 1873 or 1874, a tract of 95 acres was set off to Samuel Jefferies in severalty, and a half interest in- another tract of 216 acres was also allotted to him, the other half being allotted to J. G. Gaffney and W. G. Gaffney, who subsequently conveyed their half interest to Samuel Jefferies. Plaintiff in bringing these suits took the view -that she was entitled to have the whole of her dower assigned to her on the lands which were allotted to Samuel Jefferies upon said partition, and, therefore, she demanded dower in the entire tract of 95 acres, and in but one-half of the 216 acre tract. In the view that I have taken, she is entitled to the -same proportion in each of said tracts; and inasmuch as it would but delay plaintiff in the assertion of a part of her claim, and at the same time result in vexing a part of the defendants with additional suits for the enforcement of the rest of plaintiff’s claim against the lands in their possession, and all the parties concerned being before the Court, the Court will afford complete relief by adjudging and awarding to plaintiff the entire amount of her dower which she is entitled to in the lands of these defendants, to wit: one-sixteenth thereof, as above ascertained.</p> <p>“It is, therefore, adjudged, that plaintiff is entitled to one-sixteenth part for life in and of the premises described in the complaints in all the above stated cases as her dower therein; and that a writ in dower do issue out of this Court according to law, entitled in all 'the above stated cases, directed to one set of commissioners nominated and appointed according to law, requiring them, or a majority of them, to ad-measure and set off to plaintiff her dower as herein determined in each of the premises described in each of the thirty-five complaints separately, requiring them to include all their assignments or assessments in one return, if practicable, but with the right to make as many returns, separate and distinct, as justice or the necessity of the several cases may require.”</p> <p>From this decree, both sides appeal.</p> <p>cite: Actual partition does not defeat dozver: 36 S- C., 408; 13 Mass., 503. Seisin is of interest in, and not of the land itself: Bradley v. Fuller, 23 Pick. Lien of mortgage or judgment against tenant in common is transferred to his share zvhen set off: 32 S. C., 443. Order in partition need not be in alternative: 57 S. C., 89.</p> <p>cite: Widozv is barred of dozver by partition among husband’s grantee and tenants in common: 36 S. C., 404; 13 Mass., 506. If dozver is not barred, claim of dozver is limited to husband’s seisin of entire tract before partition: 36 S. C., 416; 3 Lev., 84; 69 Me., 546; 1 Dutch., 47.</p>

<p>Before Aldrich, J., Union, July 13, 1900.</p> <p>Action for damages to real property by C. L. Allen against Union Oil and Mfg. Co. by the following complaint:</p> <p>“The plaintiff above named complains of the defendant and alleges:</p> <p>“I. That the plaintiff is, and was at the time hereinafter mentioned, the owner and in possession of a certain lot, piece or parcel of land, with the buildings thereon, situated on Church street, in the town of Union, and in the county and State aforesaid, and bounded on the east and north by said Church street, on the south by lots of Robinson & Allen, and on the west by lot of Con. Allen, lands belonging to the 'Spartanburg, Union and Columbia Railroad and lands on the estate of B. F. Rawls, deceased, and lot of Elmira Little-john, and that plaintiff occupies and inhabits the premises described.</p> <p>“II. That on the 12th day of June, 1889, the defendant was an unincorporated association, and was doing business under the name and style of the Union Oil and Manufacturing -CompaiTy at Union, S. C., and that on the 9th day of December, 1889, i't was chartered in the same name and style as a body corporate and politic under the laws of the said State, and that it was and is capable of suing and being sued.</p> <p>“III. That some time between the 12th day of June, 1889, and the 9th day of December, 1889, the defendant came into possession of a certain parcel, piece or lot of land in the town of Union and in the county and State aforesaid, on the west side of Church street, opposite the graded school building lot on the north, and bounded on the south by lot of Elmira Littlejohn, and on the west by road or avenue leadingffrom the depot of Southern Railway Company to the residence or premises of W. L. Culp, and the said described parcel, piece or lot of land is near the home and premises of the plaintiff described in paragraph one of this complaint, and the said parcel, piece or lot of land is now in the possession and under the control of the defendant in this action.</p> <p>•“IV. That prior to its incorporation and some time after the 12th day of June, 1889, the defendant, over and against the protest of this plaintiff, commenced the erection of certain building receptacles and other works upon the premises described in paragraph three of this complaint, for the purpose of manufacturing cotton seed oil and cotton seed fertilizers, and for the keeping and storing cotton seed, cotton seed oil and cotton seed fertilizers, and after its incorporation as alleged, the 9th day of December, 1889, the defendant continued and completed the erection of said buildings, receptacles and other works, and ever since and does now continue the same, over and against the protest of this plaintiff, upon the premises described in paragraph three of this complaint, and has furnished and placed in said buildings all the madhinery, means and appliances needed to carry on the projects of its said business.</p> <p>“V. That after its incorporation, and before the commencement of this action, the defendant, the Union Oil and Manufacturing Company, erected, or caused to- be erected, certain other buildings and receptacles upon the premises described in the 'third paragraph of this complaint, and use •the same in connection with a ginning outfit or plant defendant placed upon said premises about the time of the completion of buildings and receptacles mentioned in the paragraph number five of the complaint, for the purpose of extracting seed from the crude cotton and compacting the lint thereof into marketable bales, and maintains, runs and operates the same and certain seasons of the year, particularly from some time in August to some time in February of each year, and the defendant at such seasons ever since and does now continue the sa'me on its said premises.</p> <p>“VI. That said defendant stores in the buildings and receptacles heretofore mentioned oils, cotton and other combustible substances, and at certain seasons of the year the ginning of cotton continues through the day until late hours in the night time, and that sparks of fire and particles of lint cotton escape from the defendant’s premises and fall upon, in and about the residence and outbuildings of this plaintiff.</p> <p>“VII. That the buying, receiving and storing of cotton seed and the manufacture of cotton seed oil and cotton seed fertilizers by the defendant on the said premises has been carried on ever since 1889, and is still being carried on by the defendant day and night throughout the year, with an exceptional short interval in midsummer from six to ten weeks of each year; that said premises are and have been used by defendant as a depot for the storing and keeping of oils and fertilizers, from which premises they are taken from time to time to supply the traffic of the defendant, and the process of the manufacturing, storing and disposing of the same to meet the demands of the defendant’s traffic in the same has been and is now continually going on.</p> <p>“VIII. That by reason of said manufacturing, keeping, storing, selling and otherwise disposing of said oils, fertilizers, by and on the part of the defendant upon said premises, disagreeable smells and fumes have been caused to arise thereon and therefrom, which have continually and still dp annoy the plaintiff, his family and servants, rendering his dwelling house and premises untenantable.</p> <p>' “IX. That by reason of the continual running of machinery by defendant upon its premises aforesaid for the uses and purposes heretofore mentioned, many noises of a loud and offensive character are made, which have continued and do still continue to distract and distress this plaintiff, his family and servants, rendering his premises undesirable and untenantable.</p> <p>“X. That by reason of the maintaining, running and operating the said mill for the uses and purposes as aforesaid, and the keeping, storing and disposing of cotton seed, cotton seed oil and cotton seed fertilizers as hereinbefore mentioned, and the further maintaining, running and operating the ginning outfit or plant mentioned in the preceding paragraph of this complaint, all by and on part of the defendant, smoke," dust, cinders, small particles of lint cotton and soot have been caused to arise from the said premises of defendant, which have continued and still continue to harass, inconvenience and irritate the plaintiff, his family and servants, rendering his premises undesirable and untenantable.</p> <p>“XL That by reason of the maintaining, running and operating the said cotton ginning plant by the defendant upon its said premises the streets about plaintiff’s said home and premises at certain times (when the ginning and packing of cotton is going on) are obstructed and jammed by the incoming, outgoing and waiting wagons and teams of the customers of the defendant, which have continued and still continue to annoy and inconvenience this plaintiff, his family and servants, rendering his premises ineligible as a place of residence and untenantable.</p> <p>“XII. That since the occupancy of said premises by the defendant and before the commencement of this action, through defendant’s negligence and carelessness, water is and has been allowed to collect and stagnate, and decaying and decomposing vegetable matter is and has been permitted to remain upon and around said premises of defendant, thereby causing noxious and offensive smells to arise and corrupting the atmosphere in and about the home and premises of the plaintiff, which conditions have existed and continue to exist, greatly to the alarm of this plaintiff as to the health of himself and family and to the nuisance of his dwelling house and premises.</p> <p>“XIII. That by reason of -the acts committed by the defendant as alleged in this complaint, as well as its continuance of the nuisance created by the defendant upon its premises aforesaid, the said defendant has impaired the value o'f plaintiff’s said premises rendering them almost worthless, and that it has endangered said premises by exposing the same to the constant risk of destruction by fire, has discomforted his family and servants with disagreeable odors, and has .imperilled their health and lives, and has kept and is keeping him and his family in continual fear and apprehension.</p> <p>“XIV. That said acts have caused continued apprehension and mental suffering to plaintiff, his family and servants, who are obliged to remain in said premises, because plaintiff cannot afford to lose the use of said property or the rental thereof, and that if he shall move, plaintiff cannot get a tenant to take his said premises except at a rate of rent far below what its fair rental value would be were it not for said nuisance on defendant’s premises, and that a fair valuation of plaintiff’s property herein described, if it were not for said nuisance on defendant’s premises as aforesaid, would be $4,000.</p> <p>“XV. That on the day of December, 1899, and at sundry times prior thereto', plaintiff gave notice to the defendant of the continuance of the nuisance maintained by defendant upon its said premises, and of plaintiff’s damage in the sum of $2,500, and demanded this amount of defendant, but the defendant in this action has not abated said nuisance or in any way liquidated plaintiff’s said damage.</p> <p>“XVI. That the acts of the defendant in this action were, are and have been done negligently, unskilfully, wantonly and in a reckless disregard of the property and rights of this plaintiff, to his damage $2,500.”</p> <p>Plaintiff having died, 'the Circuit Court on motion ordered the case continued in the name of the administrator of plaintiff. From this order defendant appeals.</p> <p>cite: 21 Stat., 18; 20 S. C., 479; 40 S. C., 393; 34 S. E. R., 858.</p> <p>Oral argument by latter.</p>

Before Klugh, J., Saluda, August, 1900. Action for goods sold and delivered by Burwell & Dunn Co. v. Irvine Chapman et al. From order Circuit Court reversing judgment of magistrate, defendants appeal.