Volume 62 — South Carolina Reports

Before Townsend, J., Richland, fall term, 1900. Action by Isabella Daniels, by her guardian ad litem, David Cooper, against Florida Central and Peninsular R. R. Co., for damages for ejecting her from a passenger train. From judgment for plaintiff, defendant appeals.

Before Gary, J., Orangeburg, January, 1900. Action for damages and for removal of nuisance by Eliza C. Brandenberg, as guardian- ad litem of Minnie Halman, and Perry E. Brandenberg, W. Wm. Brandenberg, Harvy C. Brandenberg and Effie C. Jones, against Jesse R. Zeigler and Charlotte Buyc-k. From order of nonsuit, plaintiffs appeal.

Before Watts, J., Bamberg, February, 1900. Action by A. C. Cain against South Bound R. R. Co. for damages to land by flowing water thereon. From order sustaining demurrer of defendant, plaintiff appeals. The latter cites : 24 Ency., 904, 917-931; 36 S. C., 93; Rev. Stats., 1264. The latter cites: Angel on Watercourses, secs. 108a, 108b; 9 Am. R., 276; no N. C., 438; 43 N. W. R., 76; 38 Am. R., 139; 39 S. C., 472; 32 S. E. R., 358.

<p>Before Aldrich, J., Oconee, November, 1900.</p> <p>Action by Southern Railway Co. against J. R. Kay, as county treasurer of Oconee County, to recover taxes paid under protest. Prom judgment for plaintiff, defendant appeals.</p> <p>Mr. U. L. Herndon cites: The board of county commissioners is empowered by Constitution to levy and collect taxes for county purposes: Cop., art. x.', sec. 13. As to what is an assessment: 54 S. C., 564; 4 S. C., 54; 25 Ency., 181. Act of i8p6 is repealed neither expressly nor by implication by act of i8pp: 29 S. C., 485; 37 S. C., 551; 39 S. C., 8; 13 S. C., 394; 14 S. C., '169; Black on Inter. Raws, 112; 23 Ency., 489, et seq. Taxes are frequently levied by other bodies than the General Assembly: 1 McC., 360; 32 Miss., 469; 25 Ency., 181; Rev. Stat., 1188, 1066; acts of 1900, p. 289.</p> <p>cites: Only question is can commissioners levy in excess of levy authorised by appropriation act: 23 Stat., 152; 22 Stat, 238.</p>

Before Aldrich, J., Greenville, January, 1901. Two actions, one on note by C. E. McBrayer against O. P. Mills, and the other for partition by C. E. McBrayer, Mabel McB. Charles, and William A. McBrayer against O. P. Mills. , Prom Circuit decree, defendant appeals in both cases. Mr. T. P. Cothran cites: How shall action on breach of new promise be brought: 35 S. C., 614; 14 S. E. R., 39; 41 S. C., 147; 38 S. C., 300; 33 S. C., 508.

Before Gage, J., Darlington, fall term, 1900. Action on notes by Henry J. Hickson against John H. Early. From order sustaining demurrer to one defense, defendant appeals. cites: False representations alleged in the answer are sufficient to sustain the defense of fraud: 26 S. C., 282; 50 S. C., 399; 56 N. Y., 83; hi U. S., 148. cite: Bxception too general for consideration: 51 S. C., 55; 59 S. C., 1; 57 S. C., 224; 59 S. C., 244.

Before Watts, J., Colleton, November, 1900. Action for damages for right of way by Eleanor R. Glover against Annie W. Remley et al., and the Charleston and Savannah Railway Co. From order sustaining demurrer, plaintiff and defendants except railway company appeal. cite: Life tenant gave right of way, and could only give title he had: 16 S. C., 365; 15 S. C., 10, 479. Right of plaintiff to compensation is assured her: 5 and 14 amend.

Petition in the original jurisdiction of this Court for injunction against issuing municipal bonds, by Charles D. Bray against Wm. PI. Malloy, mayor, arid J. J. Brown and others, aldermen, constituting the city council of the city of Florence. cites: Petitioner being resident taxpayer, has status here: 59 S. C., 534. Proposed issue carries bonded debt of city beyond constitutional limits: Sec. 7, art. VIII., Con.; sec. 5, art. X., Con.; 60 S. C., 532.

Petition in the original jurisdiction of this Court, by E. Norton, B. G. Collins, C. P. Quattlebaum, F. A. Burroughs and D. A. Spivey, trustees of Burroughs School, a corporation chartered under the laws of this State, against J. H. McCaskill, A. J. Lancaster, and Evander Graham, constituting the board of control of Horry County, asking to perpetually enjoin respondents from locating a dispensary in the town of Conway.

Before Gary, J., Charleston, October, 1900. Action for accounting of partnership assets by Julia E. S. Wagner, in her own right and as administratrix of Eevi P. Wagner, William Wagner, Max Wagner, and Clement Wagner, against Joshua C. Sanders, H. G. Eeland and J. B. Morrison.

Before Buchanan, J., Charleston, December, 1900. Action by W. S. Whaley against W. Wallace Lawton for false imprisonment. From judgment dismissing complaint on oral demurrer, plaintiff appeals. cite: 12 Ency., 2 ed., 754, 744, 721, 751, 752, 755, 752, note, 753) llote> 758) 755; 11 Johns., 344; 17 Bar., 179; 9 Utah, 12; Addison on Wrongs, p. 400, 426, Wood’s ed., sec. 798; 11 S. E. R., 367; 2.Stow., 412; 179 Pa. St., 539; 62 P., 303; 58 S. W., 437; 18 CoxC.

Before Gage, J., Spartanburg,¿October, 1899. Action by County of Greenville against County of Spartanburg; W. R. Epps, county treasurer, R. P. Epton, county auditor, and Pelham Mills, to enforce award of arbitrators. The following is so much of the complaint as states the first cause of action, and the answer thereto: “I. That the plaintiff is a body' politic and corporate under the laws of the State of South Carolina. “II.

Before Buchanan, J., Orangeburg, September, 1900. Two actions: (i) David J. Salley and (2) J. A. Zeigler against Manchester and Augusta Railroad Company, for damages for killing dogs. Prom verdict for plaintiffs, defendant appeals. cite: It is error to admit in evidence only a part of the testimony of a witness at a former trial, the witness being in the Court room: 5 Rich., 358; 19 S. C., 354; 27 S. C., 64; 53 S. C., 448.

Before Townsend, J., Edgefield, November, 1900. Action by Rebecca Doolittle, as administratrix of estate of Benj. S. Doolittle, against Southern Railway, for damages for negligently causing the death of her intestate. After judgment for plaintiff, defendant appeals.

Before Aldrich, J., October term, 1900. Action on benefit certificate by Mrs. Marion E. Latimer against Sovereign Camp Woodmen of the World. From judgment for defendant, plaintiff appeals. cite: On the construction of the policy: 57 S. W., 415; 35 L. R. Ann., 258; 150 U. S., 1150; 137 U. S., 661; 47 N. Y., 52; 34 Wis., 389; 84 Penn. St., 385; 2 Dillon’s C. C., 154; 87 Ky., 54I; 109 U. S., 880; 95 U. S., 232; 29 Fed. R., 198; 5 M. •& G. Eng.

Before Gage, J., Aiken, June, 1900. Action by Fannie Butler, admx. of John Thomas Butler, against W. H. H. Butler et al., to marshal the assets, &c., of intestate’s estate. Eva Harker Horner, a creditor of said intestate, proved a note and mortgage against intestate under the general order in this proceeding.

Before Townsend, J., Richland, January, 1900. Held: until such share matures or is withdrawn.’ The certificate provides that whenever the monthly payments on any shares, together with the profits apportioned to such shares, amount to $100 per share, the holder shall be entitled to withdraw $100 per share upon the surrender of his certificate; and it also provides for ascertaining the…

Before Klugh, J., Sumter, October, 1899. Action for possession of land by Friendly Kolb against Rewis Jones. From judgment for plaintiff, defendant appeals. cite: Richardson deed was void here until execzition of all joint makers was proved: 9 S. C., 234. What is color of title? 42 S. C., 138; 16 S. C., 469; 2 Hill, 492. Adverse possession is necessary to presumption of grant: 48 S. C., 472.

Before Gagl, J., Darlington, January, 1901. Action by Darlington Oil Co. against Pee Dee Oil and Ice Co. and Virginia-Carolina Chemical Co. for perpetual injunction and damages.

Before Townsend, J., Richland, November, 1900. Action for damages for failure to deliver a telegram by-Jacob W. Butler against Western Union Telegraph Company. From order overruling demurrer, defendant appeals. cite: Damages to feelings are compensatory: 8 Ency., 2 ed., 661; 34 S. C., 324. Law governing punitive damages in S. C.: 35 S. C., 486, 501; 22 Stat., 693.

Before Benet, J., Saluda, May, 1900. Action by J. D. Swancey against L. C. Parrish. Prom order of nonsuit plaintiff appeals. cites: Witness not necessary to chattel mortgage: 27 S. C., 262. Seizure and sale of chattel under mortgage only satisñes debt pro tcmto: 31 S. C., 161.

<p>Before Gage, J., Cherokee, June, 1901.</p> <p>Indictment against H. J. Queen, D. F. Ray, R. W. Ray, J. B. Teal and Weldon Henderson. From judgment against all defendants, H. J. Queen and R. W. Ray appeal.</p> <p>cites: The jury law now of force is unconstitutional: 23 Stat., 3x5, 320, 279; Con. 1895, art. III., sec. 34, art. I., sec. 29; 60 S. C., 504; 59 S. C., no; 3 Ency., 695-6.</p> <p>cites: On same point, contra: 38 S. C., 271; Black on Int. of Laws., p. 19, Con. 1895, art. III., sec. 34; 61 S. C., 212; 59 S. C., 114.</p> <p>cities : On same point contra: 59 S. C., 110; 61 S. C., 205; 10 Whitt, 30; 21 Am. St. R., 780; 34 O. St. R., 228; 51 S. C., 51; 59 S. C., 200.</p>

Before Gage, J., Greenwood, November, 1901. Indictment against Henry Franklin- for assault and battery with intent to kill. The defendant moved to quash the indictment on the ground that it was found by a grand jury that was not summoned and empanelled in accordance with the provisions of the Constitution.

Before Izlar, Special Judge, Newberry, May, 1900. Action by William Kibler against Southern Railway Co. on the following complaint: “The plaintiff, complaining, alleges : “I. That the defendant is a corporation by and under the laws of the State of South Carolina, and as such is doing business therein as a common carrier of passengers. “II.

Before Townsend, J., Newberry, July, 1901. Motion in Ward against Western Union Telegraph Co. From order refusing motion, defendant appeals. cite: There is no provision of law for holding a civil Court in Newberry in summer: Art. V., sec. 26; 22 Stat, 685; Code, 26; 40 S. C.. 480. Provision in order continuing the motion to next term continued it till next regular term, which was not until October: 59 S. C., 581; Code, 26, 311; 40 S. C., 486.

Before Gage, J., Edgefield, March, 1901. Action by O. O. Burnett against Southern Railway Co. From judgment for plaintiff, defendant appeals. The latter cites: Penal statutes nmst be strictly construed: 18 S. C., 305; 22 S. C., 201; 24 S. €., 109; 26 S. C., 294; 8 S. C., 70; 3 Hill, 99; 1 Bail., 19; Sutherland Stat. Const., 444; 177 U. S., 310; 12 A. & E. Corp. Cas., 281; 3 E. R. A., 224.

Before Ketjgh, J., Greenville, August, 1901. Three actions — J. A. and W. C. Baker, J. A. Baker, W. C. Baker — against W. M. Irvine. From Circuit order reversing magistrate judgments, plaintiffs appeal. cite: Not necessary to allege residence of defendant in summons and complaint in magistrate court: 58 S. C., 51; 47 S. C., 358; 56 S. C., 554. Appearance of defendant waives any jurisdictional defect of person: 1 Ency.

<p>Before Benet, J., Spartanburg, December, 1900.</p> <p>Action by Ed. Sims et al. against Jane Steadman et al. From judgment for defendants, plaintiffs appeal.</p> <p>Mr. Nash cites : As to mortgagee in possession: Rev. Stat. 187.2, p. 536; 17 Stat., 19; 26 S. C., 408; 36 S. €., 569; 12 S. C., 25; 11 Rich., 705. As to impairment of a substantial right: 15 Wall., 610; 13 S. C., 364; 42 S. C., 88.</p> <p>Mr. Hydrick cites : Statute will not be given retroactive effect: 34 S. C., 491; 31 S. C., 7; End. on Int. of Stat., secs. 273, 275; Cooley on Con. Dim., p. 290; 17 Ency., 2 ed., 4; 13 Rich., 498; 14 Rich., 148. The rights of the parties stood as at common lazv: 1 Hill Ch., 497; 11 Rich., 686; 15 Rich., 252; 12 S. C., 9; 47 S. C., 416; 37 S. C., 317. Successive conveyances operated as assignment of the mortgage: 40 S. C., 413, 457. An action to redeem is plaintiff’s remedy: 27 S. C., 309.</p>

Before Gage, J., Fairfield, August, 1901. Action by Robert H. Jennings, as clerk, against Henry R. Parr, Robert H. Jennings, as clerk, as administrator of estate of W. B. Elkin, and as administrator of estate of Mary Ann Elkin and Carrie G. Elkin.

Before Watts, J., Orangeburg, May, 1900. Action by James Smith against South Carolina and Georgia Railroad Co. From judgment for defendant, plaintiff appeals. cite: Where plaintiff alleges the injury was sustained without his fault, the defendant may show contributory negligence without pleading it; rule of evidence remains same: 50 S. C., 53; 51 S. C., 159; 19 S. C., 20; 7 Ency., 2 ed., 453.

<p>Before Townsend, J., Richland, March,’1900.</p> <p>Action by James R. Brasington against South Bound Railroad Company. From judgment for plaintiff, defendant appeals.</p> <p>cites: As to pleading municipal ordinances: 34 S. C., 541; 1 Dill. Mun. Corp., 4 ed., sec. 346; 54 S. C., 496; 15 Ency. P. & P., 424; 1 Elliott on R. R., sec. 1698. No court except of the city can take judicial notice of ordinances: 15 Ency. P. & P., 425, note 3; 48 Kan., 430; 12 Ency., 1 ed., 168; 17 Ency., 1 ed., 937. Gross negligence or recklessness as basis of punitive damages must be proved by preponderance of evidence: 60 S. C., 74. As to the measure of damages: 1 Sedg. on Dam., sec. 86; 66 Ga., 259; 1 Suth. on Dam., p. 187.</p> <p>cite: Evidence of violation of an ordinance is competent on question of damages, though not pleaded: 18 Mo. App., 385; 84 Mo., 121; 15 Ency., 427; 52 S. C., 329; 58 S. C., 74; 47 S. C., 28; 11 S. C., 292; 14 Ency. P. & P., 333. The allegations of the complaint present a case for punitive damages: 60 S. C., 74, 48. To ascertain if there be error in an instruction, whole charge must be construed together: 29 S. .C., 7, 35; 33 S. C., 97. Violation of a statutory duty is negligence per se: 58 S. C., 228; 53 S. C., 124; Abbott’s Trial Evidence, 590; 39 R. R. A., 112; Spear, and Redf. on Neg., sec. 13. An exception must specify particular error: 58 S. C., 97; 24 S. C., 280; 27 S. C., 44. Jury may award punitive damages zvhere there is evidence of gross negligence or recklessness, or zvanton disregard of the rights of others: 60 S. €., 74; 54 S. C., 507; 33 S. C., 435; 57 S. C., 233; 51 S. C., 304; 52 S. C., 344. Construction of charge: 22 S. C., 477; 60 S. C., 52; 16 S. C., 578; 21 S. C., 400; 22 S. C., 164, 191; 41 S. C., 452; 37 S. C., 344. Measure of damages: 8 Ency., 2 ed., 643.</p>

Before Gary, J., Lexington, August, 1901. Two actions for mandamus : (1) by Loan and Exchange Bank against Frank W. Shealy, county treasurer, and (2) by James W. Bennett against the same. From judgment dismissing the ’complaints the plaintiffs appeal. cites: As to the validity of the warrants: 16 Stat., 571; End. on’Inter. of Stat., sec. 186; Gen. Stat., sec. 1008; Con., art. XI., secs. 5 and 6; 22 Stat., 150, 761; 51 S. C., 388; 23 Stat., 149.

<p>Before Buchanan, J., Colleton, May, 1901.</p> <p>Action by Jos. W. Stokes, Hattie A. Smith and Anna V. Stokes against A. E. Stokes, as administrator of estate of James R. Stokes. From Circuit decree the plaintiffs appeal.</p> <p>cites: Pacts here warrant presumption of payment of debts alleged due intestate: 1 Rich. Eq., 53; 4 Rich. Eq., 16; 10 Rich. Eq., 301. But whether paid or not, they could not be charged to appellants: 16 S. C.; 218; 25 S. C., 204; 4 Myl. & Cr., 442; 1 Beav., 131; Williams on Exors., *1120. If not paid, debts are barred: 23 S. C., 461.</p> <p>cite: The administrator may retain the shares of the appellants and apply to payment of their father’s debt: 25 S. C., 304; Rev. Stat., 1980, sub. 3; 11 Ency., 2 ed., 1170, 1171. Statute of limitations do not constitute a bar: 16 S. C., 216; 25 S. C., 293.</p>

Before Krugh, J., Florence, September, 1899. Petition by Robert E. Chase, as trustee of the bankrupt estate of Thos. D. Rhodes, in the case of Henry Sonneborn & Co. against Thos.

<p>Before Townsend, J., Union, June term, 1901.</p> <p>Indictment against Frank Brown for violation of dispensary law. From order quashing the indictment the State appeals.</p> <p>cites: 54 S. C., 313; 43 S. C., 108.</p>

Before Aldrich, J., Barnwell, July term, 1901. Indictment against Sam Bates. From conviction for housebreaking and larceny, defendant appeals. cite: Buying or receiving stolen goods is a misdemeanor: Crim. Stat, 161. If party is found in possession of stolen goods and does not satisfactorily explain their possession, he is presumed to be the thief: 3 Brev., 314; 2 Tr. Con. R., 692; 4 Strob., 303; 1 M. Con. R., 274.

<p>Before Townsend, J., Florence, January, 1900, term.</p> <p>Action by A. P. Hatchell against J. T. Chandler. From judgment for plaintiff, defendant appeals.</p> <p>cites: As to charge on the facts: 26 S. E. R., 238; 27 S. E. R., 484, 526, 662; 31 S. E. R., 62. Exemplary or punitive damages cannot he predicated upon negligence, either ordinary or gross: 38 S. E. R., 242; 32 S. E. R., 567.</p>

Before Ardrici-i, J., Barnwell, July, 1901. Action by Melchers & Co. against W. W. Moore. From .judgment for plaintiffs, defendant appeals. cite: Answer stating new matter by zvay of defense is not frivolous: 27 S. C., 164; 6 S. C., 113. Plaintiff cannot make offer of .judgment: Code, 386.

Before Klugi-i, J., Darlington, March term, 1900. Action by Bright Williamson against Eastern Building and Loan Association, of Syracuse, N. Y. The trial Judge charged the jury as follows: “This is a suit brought by Mr. Bright Williamson, as plaintiff, against the Eastern Building and Loan Association, of Syracuse, N. Y., as defendant.

<p>Before Gage, J., Laurens, March 2, 1901.</p> <p>Indictment in magistrate court against Vandor Leak. From order of Sessions Court affirming magistrate judgment, defendant appeals.</p> <p>cite: Crim. Code., 288; 32 S. C., 126.</p>

<p>Before Gage, J., Newberry, November, 1901.</p> <p>Action for injunction by J. A. Sligh et al., taxpayers of School District No. 19, against Geo. W. Bowers and others, as trustees of such district, and the county board of education for Newberry County. From order granting temporary injunction, defendants appeal.</p> <p>cite: Court of equity cannot grant injunction where there is adequate remedy by statute: 16 Ency., 2 ed., 354; 9 S. C., 308; 9 Rich., 292; 2 Hill, 357; 12 Rich., 44; 51 S. C., 389; 52 S. C., 201; 1 High on In., p. 28, sec. 29. Plaintiffs had adequate remedy by statute: 22 Stat., 161, 164, secs.- 29 and 36. Consent of county board not necessary before trustees ccm change site of school building: 22 Stat., 167, sec. 44. Duty of trustees to manage local and educational interest of district: 22 Stat., 165, sec. 37. Plaintiff must make out clear right to relief by his pleading: 10 Ency. P. & P., 940, 943; Rice Eq., 80. No right of injunction exists where there is plain and adequate remedy at law: 10 Ency. P. & P., 923, 95 B 95B 953 5 High on I-nj., sec. 28.</p> <p>were to file argument, but case was decided before argument filed.</p>

<p>Before Hudson, special Judge", Barnwell, April, 1901.</p> <p>Action by C. B. Dunbar against Charleston and Western Carolina Ry. Co. From judgment for defendant, plaintiff appeals.</p> <p>cite: This was a contract to transport to New York: 10 Rich., 382; and not merely to “forward:” 36 S. C., 116. There could be no agreement by plaintiff to limitations of which he had no knowledge, and which were not brought to his attention: 32 Md., 333; Fed. Cas., No. 689; 14 Blaekf., 9; 16 111. App., 425; 91 111., 195; 160 111., 648; 78 Ala., 597. Any doubt in bill of lading must be solved in favor of shipper: 47 U. S. App., 744; 38 L- R- A., 271.</p> <p>Mr. Laurie T. Islar cites: The bill of lading is the contract between the parties, and the shipper is bound by its terms: Rev. Stat., 1720; 19 S. C., 353; and defendant is not liable: 36 S. C., no; 43 S. C., 453. Shipper had sufficient notice of terms of bill of lading to put him on enquiry: 11 S. C., 4°8; 18 S. H. R., 1008; 14 S. C., • 321; 35 S. C., 127; 26 S. C., 91.</p>

Before Buchanan, J., Sumter, July, 1895. Action by Shepard Nash, as administrator of Mrs. Nancy Woodward, against J. Frierson Woodward.

<p>Before Aldrich, J., Charleston, May, 1901.</p> <p>Action by Mamie F. Grant against Joseph M. Poyas and Susan E- Mendenhall et al. The appeal is from the following order sustaining demurrer to the two causes of action set out in the complaint:</p> <p>“This action comes before this Court upon a demurrer to the complaint, interposed by the guardian ad litem of the infant defendants. The complaint must be read as a part of this decree. The most material,averments thereof are: That Carry Whyte died intestate in Sept., 1887, leaving sur? viving her as sole next of kin, heir at law and distributee, her daughter, the plaintiff; that she left property worth $1,100 or more; that no letters of administration were ever granted on her estate; that plaintiff was born in Oct., 1875; that the defendants, Poyas and Mendenhall, the brother and sister of intestate, ‘illegally and without authority of law took the property of this plaintiff, which she had inherited from her mother, Carry Whyte, and invested a part of it, $1,100, in certain described real estate; that Susan E. Mendenhall has executed a declaration of trust, whereby she declared that she held one undivided half portion of said real estate in trust for the use and benefit of the Due defendants, who are the illegitimate children of Carry Whyte; that the defendants, Joseph M. Poyas 'and Susan E. Mendenhall, held, and now hold, said real estate with a resulting trust for^ the use and benefit of plaintiff; that there are no liens or encumbrances on said realty of record, and that no person other than the plaintiff and defendants are interested in said real estate-as owner or otherwise; and defendants have no claim thereto.’ ■</p> <p>“The second cause of action alleges that defendants, Poyas and Mendenhall, have wrongfully and illegally leased said premises, and collected as rent of said premises $720, ánd kept the same to their own use; that plaintiff was ignorant of her rights, ‘confiding absolutely in the representations’ of said defendants ‘-that’ she had ‘no rights in the premises;’ that no part of said rent has been paid plaintiff, and ‘that only within the last few days, to wit: one month, has she learned her rights in the premises.’</p> <p>“This ease is predicated upon the theory that plaintiff, as sole heir, next of kin and distributee of the estate of intestate, which has never been administered upon, can maintain an action for the recovery of the assets of intestate.</p> <p>■ “The demurrer to both causes of action is upon the grounds that, as matter of law, plaintiff is not entitled to possession of the personal estate of intestate, that there is no resulting trust to her, ‘and, therefore,’ plaintiff has not legal capacity to sue, ‘and also’ because -the complaint for the same reasons' ‘does not state facts sufficient to constitute a cause of action.’ The second cause of action is demurred to upon the same grounds, to wit: that plaintiff is not entitled, as matter of law, to the rents and profits of the aforesaid real estate, ‘and there is no resulting trust to her.’ The grounds of the demurrer must be read in full, as a part of this decree. The allegations of the complaint must be liberally construed ‘with a view o'f substantial justice between the parties’ — Code, section 180. In doing so, the construction should be as favorable as the law warrants in favor of the complaint — Childers v. Verner, 12 S. C., 1; Wallace v. Cart, lb., 576; and Davis v. Joyner, 25 S. C., 123. This brings up the old and much discussed question, ‘Can a distributee of an intestate estate maintain an action against a person, other than the administrator, to recover the assets of the estate?’ In vol. 13 of the Ency. of Plead, and Prac., on pages 2, 3 and 4, under the caption 'Actions by Legatees and Distributees — 1. Against other than Personal Representations to Recover Assets — a. Capacity to Sue — General Rules and Exceptions,’ the following appears : ‘The general rule is that a legatee or distributee cannot sue either at law or in equity to recover personal assets of the estate, and that only an administrator or executor of the decedent can maintain such a suit.’ But several exceptions to this rule are as well established as the rule itself; these exceptions being based upon the principle that where the circumstances are such that the reason of the rule ceased, the rule itself should cease. ‘The general rule,’ as above cited, is undoubtedly the law of this State, and is fully sustained by the South Carolina cases cited on page 3 of the said work, in a note. I might add to these authorities Darwin v. Moore, 58 S. C., 164; StoddcM'd v. Aiken, 57 S. C., 134; Heyward v. Williams, lb., 235; Harrison v. Lightsey, 32 S. C., 293; Richardson v. Cooley, 20 S. C., 350; and many other cases. The ‘reason of the rule’ is that it is the law — Ita lex scripta est. The law is clearly stated by Mr. Justice Pope, in Darwin v. Moore, supra, pp. 166-7, as follows: ‘Strictly speaking, there is no ownership of personal property of an intestate by his children, * * * the legal title to such personal property of an intestate is in his administrator.’</p> <p>“We next come to the ‘several exceptions’ to the ‘general rule,’ as above stated — many of said exceptions are noted in foot-notes to the text — such are when' administration, if granted, would be a ‘useless ceremony,’ ‘where there is collusion, insolvency, unwillingness to collect the assets’ by the administrator, ‘if there be no valid enforceable claims outstanding in favor of creditors,’ etc. The learned counsel for plaintiff argued that the ‘exceptions to the general rule’ exist in this State, and cited, as sustaining his position, Huson v. Wallace, 1 Rich. Eq., 23. That case holds, ‘where there are no debts, and but one distributee, the distributee may take possession without administering.’ To the same effect, see Marsh v. Nail, and Spann v. Jennings, cited and discussed in Hus on v. Wallace, supra. See, also, Markley v. Singletary, ii Rich. Eq., where this subject is discussed, and authorities are cited. It will be noted that the rights of distributees, in the cases cited, were interposed by them as a shield of defense, not as a sword of attack. Facts may be such as to constitute a defense, and yet insufficient to sustain affirmative action.</p> <p>“I don’t think that the case under discussion can be maintained as an exception to the general rule. I revere the memories of the great jurists who, in the past, adorned the bench of South Carolina. Their opinions cited, with approval, whenever the common law of England holds sway,, illumine the jurisprudence of our State and country. It is my duty, and certainly my pleasure, to follow the law as declared by our Courts of last resort; but when the General Assembly in its wisdom, and in the exercise of its power, changes the law, it is the duty of the Courts to recognize and follow the statute. The old cases, such as Huson v. Wallace, were decided under the law as it then stood; since then new laws have been enacted. The act of 1789, as amended by the act of 1839, appears as section 2023 of the Rev. Stat. of 1893. This law was directory, and provided to whom letters of administration should be granted. It does not purport to be mandatory in the sense that it required either of the parties named to 'administer. These parties may or may not administer. The inducement to such parties to administer was to acquire, in a legal way, the legal title to the assets of the intestate in which they were interested. In this way they could collect the credits, and recover the assets of intestate. Experience has shown that the only safe way to distribute an intestate’s estate was the legal' way. It has often happened that new or unknown distributees or creditors have appeared, demanded their portions or debts from the ‘sole heir,’ who, without administration, took possession of and consumed the estate. The Courts on numerous occasions have stated that it was best for the individual, and well for society, that the estate of every intestate should be legally administered upon. In this condition of affairs the General Assembly, on February 26th, 1873, passed an act entitled ‘An act to provide for the administration of derelict estates’- — -see .15 Stat. of S. C., 413. This act, amended on March 17th, 1874 (/&., Stat. 704), now appears as section 2034 of the Rev. Stat. of 1893, and reads as follows : ‘Whenever it shall come to the knowledge of any clerk of the Court of Common Pleas of any county in the State, that the estate and effects of any deceased person, as to- which administration could legally be granted by the judge of probate of his county, remains -for a period of six months entirely or partially unadministered, either by reason of no- application for letters of administration or from any other cause, so that there is no legally appointed representative of such deceased person, it shall be the duty of such -clerk of the court to make application to the judge of probate of the county for letters of administration on the estate of such deceased person, accompanied with a statement of the nature, conditions and value of the said estate, so far as it may be known to him, and thereupon it shall be the duty of such judge of probate to insert a notice of such application in the usual form for forty days in some newspaper published in such county, or if there be none such, in some adjoining county, and also at the door of the court house, and after such notice to- grant to such clerk of the court letters of administration on the estate of such deceased person, with the will annexed, in case there be a will, and the clerk shall be held liable on his official bond for the faithful discharge of his duties as such administrator.’ Derelict estates were such as are not administered. Under the old act, section 2023, they could exist. .Under the new act, section 2034, they cannot exist, unless they also escape the vigilance of an officer of the law, whose duty it is to administer upon- them. Under the earlier acts, administration could be had; under the later acts, administration upon intestate estates must be had. There is a clerk of the court and judge of probate in the county of Charleston, where the estate in question is located. Tt has come to his knowledge’ that ‘the estate and effects’ of Carry Whyte are in his county, that it has remained there for a period of six months and more entirely unadministered, and that there is no legally appointed representative of the said Carry Whyte. The clerk of the court must have ‘knowledge’ of these facts, for they are all substantially set out in the complaint herein, the original of which, duly verified by the oath of plaintiff, is upon file in his office and in his custody. It is the legal ‘duty’ of the clerk, under the specific mandate of the law, to administer upon this estate. It is equally the duty of the judge of probate to grant letters of administration to the clerk. If this be the law, and the facts are as stated, this Court is bound to follow the law, and to adjudge the legal title is not in her; that plaintiff has not the legal capacity to maintain this action, nor has she the legal right to the assets or the possession thereof for which she sues. The legal title is not in her. The estate is derelict, and must be settled in the manner provided by law for the settlement of such estates. The fact that Carry Whyte died in 1887, and that her estate has for all these years remained unadministered, cannot change the conclusions just stated; because the ‘estate’ has been concealed, surreptitiously perhaps, and the ‘knowledge’ of its existence come to the clerk but recently, when this complaint was filed. The fact that the defendants, Joseph M. Poyas and Susan E. Mendenhall, invested the money of the intestate, does not change the result. That money was an asset of Carry Whyte’s estate, and as such belonged to her administrator. His appointment will relate back to the day of her death. If there is a resulting trust in the land, it is to the estate, and in favor of the administrator, not this plaintiff. Harrison v. hightsey, 32 S. C., 295.</p> <p>“This action cannot be maintained against Joseph M. Poyas and Susan E. Mendenhall, as executors de son tort of the estate of Carry Whyte, because: ist. The complaint does not charge them as such; and 2d. ‘Persons chargeable as executors de son tort, are not liable to account to the next of kin, but to the duly appointed executor or administrator of deceased.’ Haley v. Thames, 30 S'. C., 274, and authorities there cited, including ITaselden v. Whitesides, 2 Strob., 353.</p> <p>“It follows that the demurrer must be sustained, and accordingly, it is ordered, adjudged and decreed, that the demurrer of Marion E. Due, as guardian ad litem of the infant defendants herein — Naomi C. Due, Maud P. Due and Arthur D. Due — to the complaint herein, be and hereby are sustained, and .that the complaint of the plaintiff herein be and hereby is dismissed as against-said infant defendants, and that the plaintiff do pay the costs of said infants in this action.”</p> <p>Erom this order the plaintiff appeals.</p> <p>cite: The heir at law may consider this property either as personal or real, and in either case may maintain this action: Perry on Trusts, sec. 828; 1 Rich. Eq., 1; 20 S. C., 350; 26 S. C., 589; 27 S. C., 337; 43 S. C., 388; 38 S. W. R., 500; 11 Ency., 2 ed., p. 942, note 1, 741, 742; 11 Rich. Eq., 403; 3° S. C., 293; 48 S. C., 296; 30 S. C., 345; 52 S. C., 602; 43 S. C., 441; 58 la., 659; 5 Mason, 523; 11 Wall., 513; 1 Williams on Executors, 7 ed., 310, 216; 10 Ves., 93; 2 Strob., 353; 2 Stat., 507; 3 Stat, 668; 5 Stat., 113; 48 S. C., 161; 2 Hill Ch., p. 87; Lewin on Trusts (Flint’s ed., 1888), 892, 897; 4 DeS., 474; 24 S. C., 179; 4 Rich. Eq., 80; Harp. Eq., 250; Rich. Eq. Ca., 170; 1 Johns. Ch., 128; 7 Johns. Ch., 55; 25 S. C., 43; Rice, 132; 1 Strob., 377; 4 Rich. Eq., 165; 4 S. C., 391; 11 S. C., 408; 24 S. C., 592; 48 S. C., 283; 26 S. C., 386; 27 En-cy., 253-254. Is there a resulting trust in favor of plaintiff? 1 Strob. Eq., no; Lewin on Trusts (Flint’s ed.), 143; Perry on Trusts, sec. 124; 2 Atl. R., 150; Pom. Jur., sec. 1031; Story Jur., sec. 1196; 1 Strob. Eq., in ; 19 S. C., 134; 23 S. C., 256.</p> <p>cite: Suit for personal property of intestate can only be maintained by the personal representative: 13 Eney. P. & P., 2, 3, 4; 2 Brev., 307; 1 McC. Eq., 191, 318, 506; 2 McC. Eq., 168; 9 S. C., 253; 20 S. C., 347; 32 S. C., 293; 57 S. C., 134, 235; 58 S. C., 164. If there be a resulting trust,,it is to the administrator and not to the plaintiff: 32 S. C., 295.</p>

Before Buchanan, J., Aiken, April, 1901. Action by Mrs. Julia A. Pratt and others, doing business under firm name of Daniel Pratt Gin. Co., against J. E. & R. H. Timmerman. The Circuit decree is as follows: “This case came on to be heard at Aiken, and was heard by the Court upon the pleadings, exhibits, evidence and a guaranty.

<p>Before Benet, J., Charleston, July, 1901.</p> <p>Foreclosure by Joseph W. Barnwell, trustee, et al., against Sophia F. S. Marion. From order of Circuit Court ordering resale, and not accepting proffered compliance of defendant with her bid, she appeals.</p> <p>cite: As to releasing mortgage lien: 23 Stat., 347. Delay in complying, is no ground for resale: 16 S. C., 496. This order conflicts with previous order of sale, and is therefore void: 29 S. C., 345; '27 S. C., 171; 58 S. C., 482; 32 S. C., 509.</p> <p>cite: Master may collect bonds or assign them: 14 Rich. Eq., 5. As to report of sales: 1 Foster’s Fed. Pr., 566; Bail. Eq., 13. Requiring deposit of cash at close of bidding cannot be objected to because of chilling bidding: 32 S. C., 598; Jones on Mtgs., 1635; Speer Eq., 481; Hoffman on Masters in Chancery, 220; Hoffman on Referees, 236.</p>

<p>Before Gary, J., Florence, winter term, 1898.</p> <p>Indictment by the city of Florence against C. P. Berry. From Circuit order reversing judgment of city court, the city appeals.</p>

Before Buchanan, J., Williamsburg, September, 1901. Action by A. H. Williams & Co. against Ella E. Jones. Erom Circuit order restraining defendant from running her ginnery, she appeals. cite: The order is appealable: 23 Stat., 623 ; and is an abuse of discretion: 17 S. C., 411.

Before'Gary, J., Richland, July, 1901.' Action by J. F. Walker, clerk of Court, as administrator de bonis non cum testamento annexo of estate of Eli Killian, and as administrator of estate of James Eli Killian, against' J. A. Killian, Milton R. Killian, William B. Taylor, Charles H.' Manson and J. N. Hunter.

<p>Before Hudson, special Judge, Barnwell, March, 1901.</p> <p>Action by John R. Bradley and a number of other great-grand-children of William Cave, against Jane Richardson and G. O. Riley. From order sustaining a demurrer to the second cause of action, and granting a nonsuit as to the first cause of action, the plaintiffs appeal.</p> <p>cite: As to the construction of the will: 2 McC. Ch., 440; 26 S. C., 450; DeS. Eq., 238; 1 Ves., 165; 3 Burr., 1841; Speer Eq., 317.</p> <p>cites: As to construction of will: Jarman' on Wills, sec. 648; 6 Rich. Eq., 30; 26 S. C., 461, 561; 1 DeS., 329; 2 McC. Ch., 444.</p>

Before Buchanan, J., December, 1900. Action by W. P. Gardner against James Reedy, A. M. Dofton, Jr., and their tenants. From judgment for plaintiff, defendants appeal. cites: As to the construction of Rev. Stat., 331: 10 S. E. R., 331; 16 S. E. R., 152; 22 S. E. R., 608; 106 U. S., 384; 177 U. S., 327; 35 S. E. R-, 439122 Ark., 178; 10 S. E. R., 33° 1 32 S. E. R., 291. Old action of ejectment is changed by Code: 15 S. C., 273.

<p>Before Gary, J., Richland, July, 1901.</p> <p>Motion by defendants in action by C. C. McMahon against William Pugh, D. Cooper, J. C. Cannon and J. H. Cooper, surviving partners. From order refusing motion to open default judgment and permit defendants to^ defend, they appeal on the following exceptions:</p> <p>“1. Because his Honor erred in holding that the defendants had been represented by Mr. P. H. Nelson, a practicing attorney at the Columbia bar, for about two weeks previous to the expiration of the time to answer as extended therein ; whereas, as a matter of fact, the record shows that Mr. Nelson merely conferred with one of the defendants in regard to a fee to be charged in the event of his being retained as their attorney in said cause.</p> <p>“2. Because his Honor erred in holding, ‘I do not think the neglect to answer was such as would warrant me in opening said judgment,’ and in not holding that the judgment should be opened and defendants allowed to answer.</p> <p>“3. Because, as a matter of law, in accordance with sec. 297 of the Code of Civil Procedure, a judgment by default should have been limited to the relief demanded in the complaint — that is, an accounting, the appointment of a receiver, the winding up of the partnership, and a division of the partnership property after paying all debts and costs; and inasmuch as the relief granted was more than, and entirely different from, that demand, his Honor erred in not holding, as a matter of law, that the judgment should be opened and the defendants allowed to answer.</p> <p>“4. Because his Honor erred in not holding that the order for judgment by default was obtained through the mistake, inadvertence, surprise and excusable neglect of the defendants, as shown by the facts submitted, and in that the defendants were entitled to rely implicitly upon the terms of sec. 297 of the Code of Civil Procedure:</p> <p>“5. Because, as a matter of law, under the terms of sec. 297 of the Code of Civil Procedure, the Circuit Court was without jurisdiction to render a judgment by default for $616.66 and costs, upon the pleadings in said cause, against the defendants, inasmuch as more relief was granted than was demanded in the complaint.”</p> <p>cites: Mistake of law may afford ground for relief as well as a mistake of fact: 96 Cal., 630. The relief granted should be limited to that demanded in the complaint: Code, 297; 33 S. C., 202; 1 Fla., 424; 19 S. C., 554. Statute providing for opening a judgment should be liberally construed: 6 Ency. P. & P., 154; 67 Cal., 500.</p>

<p>1. Exception too general.</p> <p>2. Pilots. — Commissioners oe Pilotage have the power to require a pilot to renew his bond and take out a new license whenever they deem proper; and after notice to a pilot of such requirement, he has no right to pilot a vessel without first complying therewith; and if he do so, he is not entitled to any compensation therefor; but that regularly licensed pilot who next “speaks” the vessel is entitled to the pilotage fees in and out.</p>

<p>Before Gary, J., Chesterfield, April, 1901.</p> <p>Action by Alexander Goodale et al. against Ervin Sowell et al. The Circuit decree is as follows:</p> <p>“This is an action on the equity side of the Court, for an injunction, brought by the plaintiffs as taxpayers and citizens of that section of Chesterfield County embraced in the act of the General Assembly of this State, exempting said section from the provisions of the general stock law. The action is against certain commissioners created under and by the act of 1899, page 172, entitled 'An act to provide for commissioners to superintend the stock law fence around that portion of Chesterfield County exempted 'from the operation of the stock law, and to provide for the maintenance of the said fence, and to punish parties destroying or Injuring it,’ to enjoin said commissioners from repairing and reconstructing said fence around said section, and from approving accounts for the building of the said fence and making further contracts for said work, and also against the county treasurer, I. P. Mangum, enjoining him from paying out funds in his hands for said purpose, and to enjoin the board of county commissioners from approving accounts for such work, and giving orders on the county treasurer for the payment of such accounts. The contention of the plaintiffs is, that the act of 1899, as well as the previous acts of the General Assembly exempting certain portions of Chesterfield County, are unconstitutional in the following particulars: 1st. Private property is taken for the use of private purposes, without the consent of the owners, or without making just compensation therefor. 2d. That they tend to abridge the privileges and immunities of citiezns of this State, and to deprive person^ of their property without due process of law, and to deny to persons within the State the equal protection of the laws. 3d. That the act of 1899 is unconstitutional, in that it seeks to except certain persons from an exemption granted to others of the same class in the same territory, under like circumstances, by leaving it to the arbitrary will of the commissioners created by said act, whether they will allow any particular persons of this class to come within the exemption, which they may refuse or deny to another. Also, in that said provision operates unequally upon persons within its territorial limits of the same class, by allowing (if the commissioners see fit to do so), those who can afford to make an extra fence, to put themselves within or without the exempted section of said county.</p> <p>“To better comprehend the issues involved, it will be necessary to give a brief history of the legislation on this exempted section. In 1886, the General Assembly enacted an act, which provided that this section of said county should be exempt from the provisions of the general stock law: Provided, That the residents of said section ‘shall build and keep in good repair a fence along the lines above described, such fence to be fully five feet high at every point, if built of rails; also to be well staked and ridered and sufficiently strong and close to protect the lands outside of said territory from the invasions of all stock and animals mentioned in the general stock law.’ The act further provided that ‘this exemption shall not take effect till said fence is compléted, and shall cease as soon as there is a failure to keep said fence up at any point: Provided, further, That-said fence be completed on or before the 1st day of January, 1889; and in case of failure to complete it'by that time that then this exemption shall not apply.’ Acts 1887-89.</p> <p>“In the agreed statement of facts used at the hearing of the cause appears the following: ‘That the fence provided for in the acts of 1886 and 1887 was never built in respect to height, in compliance with the terms of the said acts, nor has the same as built been maintained at all times — at times the said fence having been completely down along most of the line, and at places there has been no fence for several years; but the inhabitants all acquiesced in and acted upon the exemption with the fence as built until within the past five years.’ That the commissioners under the act of 1899 are building and threatening to continue to build the fence around the sections purporting to be exempt from the general stock law. That no compensation has been paid, or provided by law to be paid, for the right of way for the enclosure, nor for the use of the land enclosed. That a large portion of the residents of the section purported to be exempt are farmers, who raise stock, and a comparatively small per cent, of the land is under cultivation. That when this portion of the country was first exempted from the provisions of the stock law under acts 1886 and 1887, no objection was made to the proposed exemption, and a large majority of them consented either expressly or tacitly to same, and all acted under said exemption in good faith until within the last five years, but numbers of them now object; and other parties who have moved into said section and bought property there never have consented, but object to same. The fence as built under acts 1886 and 1887 was located only on lands of persons consenting to same, and the commissioners appointed under the act of 1899 do not propose to build the fence on the land of any who object to such location. It is further agreed, that a small number of persons owning property in the section purporting to be exempt objected to the exemption prior to the act of 1899, and the line of the old fence is now on the lands of some of these parties, but it was consented to when placed there by parties then owning the land. Under the above as the existing facts, both parties desire to test the constitutionality of the several acts of the General Assembly herein referred to. By a consent order, the claims for building fence up to the commencement of the suit have been paid.’</p> <p>“By a comparison of the acts of 1886 and 1887, it will be seen that the provisions of the two acts are very similar. The act of 1887 changing somewhat the course of the fence, which was also required to be five feet high at every point, but was not required to be staked and ridered as in the first act. The following exemption, however, is found in both acts: ‘that this exemption shall not take effect until said fence is completed, and shall cease as soon as there is a failure to keep said fence up at any point.’ It is admitted that such a fence as the act prescribed was not built, nor was the same built within the time limited by said act. A fence was, however, built to which the residents of that section made no objection, and a large majority of them acquiesced in the same for a while. Since that time, however, the fence has not been kept up, and a portion of the time it has been down completely for several years, and I believe has been destroyed (as stated in argument) by fire. This state of affairs existed till 1899, when the General Assembly passed an act under which the commissioners are now operating, the purpose of which was the rebuilding, repairing and reconstructing the old fence. At this stage of the case my conclusion is, that the exemption-from the provisions of the general stock law, contemplated by the acts of 1886 and 1887, were conditional, and those conditions not having been complied with, there was no exemption. Those acts expressly provide ‘that this exemption shall not take effect until said fence is .completed, and shall cease as soon as there is a failure to keep said fence up at every point. It being admitted that the fence was not built within the time nor in compliance with the terms of the act, there was no exemption under the same. If, however, it -is contended that there was a substantial compliance, in which the citizens in that section of the county acquiesced, they would still have the right to now object, for the reason that the act provides that such exemption ‘shall cease as soon as there is a failure to keep said fence up at any point.’ The commissioners created under the act of 1899- are constituted ‘commissioners to superintend and repair and reconstruct the fence around that portion of Chesterfield County which is exempt from the stock law,’ virtually admitting that at -the time of the passage of said act the fence had not been kept up as contemplated by the previous acts.</p> <p>“Having reached the conclusion that the plaintiffs have not so acquiesced or consented to the exemption as the establishment of the fence under the acts of 1886-7, as to estop them from maintaining this action, we are now confronted with the real issue in the case. Are the acts unconstitutional ? In the agreed statement of facts we find the follow- ■ ing: ‘That no compensation has been paid, or provided by law to be paid, for the right of way for the enclosure, nor for the use of the land enclosed.’ And yet the act provides that the commissioners ‘shall determine where said fence shall be located, and shall have the right to enter and have it built where they order it -to be built.’ On the very face of the act, it seems to me that authority is given to said commissioners to take and appropriate private property for a private purpose, without the consent of the owner and without any compensation being first paid or provided to be paid, and is in derogation of art. I., sec. 25, of the Constitution of 1868, which provides: ‘Private property shall not be taken for public use, or for the use of corporations, or for private use without the consent of the owner, or a just compensation being made therefor.1 The Constitution of 1895 is to the same effect. Art. I., sec. 17: ‘Private property shall not be taken for private use without the consent of the owner, nor for public use without just compensation first being made.’ Our own case of Fort v. Goodwin, 36 S. C., 453, is directly in point. I quote from the syllabus: ‘An act of the legislature cannot authorize land to be taken for the building of a fence to increase a pasture in a section of a county for the supposed benefit of those persons who own land within the pasture limits — certainly not without the consent of the owners or unless a just compensation be made therefor, even though the pasture be so determined upon by a vote of two-thirds of the freehold voters residing within those limits, at an election held for the purpose under statutory authority.’</p> <p>“In the agreed statement of facts it is stated that both parties desire to test the constitutionality of the several acts of the General Assembly referred to. The parties having signified this desire, I think it proper that I should consider another phase of the act of 1899. Under the provisions of that act the commissioners are given the power to discriminate between persons in the same territorial limits, in the same circumstances. This power is given by the expressed terms of the act: ‘they (the commissioners) shall have the right to allow parties living on the inside who desire to be allowed to be placed on the outside, or parties living on the outside who desire to be included within said fence, to be included or excluded, as the case may be, on their making the extra fence required to include or exclude them.’ In the recent case of Hill v. City Council of Abbeville, 59 S. C., 415, the license ordinance of the city of Abbeville was attacked as being unconstitutional in numerous particulars; the seventh allegation of the complaint in that case alleged ‘That the license ordinance is also illegal and void, and contrary to sec. 5, of art. L, of the Constitution of this State, in that 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 first having paid a special license tax therefor, to wit: etc,.,” and section 4 of said ordinance provides 'as follows : ‘The city council hereby reserves 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 citjr 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,’ and Justice Pope, in- commenting upon said paragraph, said: T think that section is, as alleged, invalid and illegal. The city council legislates 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 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 just. It will be time enough to consider such refusal or revocation when that issue is presented. Again, this section 4 may be stricken out and it would not destroy the entire ordinance, nor seriously interfere with the enforcement of said ordinance.’ On appeal the decree of Judge Aldrich was affirmed.</p> <p>“It is, therefore, ordered, that the temporary order of injunction heretofore granted in this cause be continued of force and made perpetual, and the injunction prayed for in the complaint be granted. It is further ordered, that inasmuch as I have been notified that there was an agreement of council depending on the result of this decree, that leave is hereby granted to effectuate the same at the foot of this decree, should they be so advised.”</p> <p>From this order the defendants appeal.</p> <p>cite: Presumption is alzvays in favor of constitutionality of an act: 41 S. C., 233; 16 S. C., 32. Statute may be made to take effect on happening of some subsequent event: Cooley’s Con. Rim., pp. 137-139. Party affected removes all obstacles of operation of statute on conditions by consenting to its operation without: Cooley’s Con. Rim., pp. 214-215. Right to discriminate without acts of discrimination does not make statute unconstitutional: 170 U. S., 213. The legislature intended the acts of 1886, i88y and i8pp as a whole: Cooley’s Con. Rim., 210-211; 30 S. C., 365. Part of act may be stricken out as unconstitutional, leaving remainder: 59 S. C-, 415.-</p> <p>cites: These acts are unconstitutional: 36 S. C., 545; 30 S. C., 367; 38 S. C., 502. Legislature cannot authorise commissioners to discriminate as to others who shall go zvithin the exemption: 170 U. S., 213; 118 U. S., 356.</p> <p>cites: Private property cannot be taken without compensation: Con. 1868, art. I., sec. 23; Con. 1895, art. I., sec. 17; 15 S. E. R., 726. The acts do not bear equally on all in exempted sections: Con. 1868, art. I., sec. 12; Con. U. S., amend. XIV.; Cooley Con. Rim., 390; 4 S. C., 410; 6 S. C., 1; 25 S. C., 53; 21 S. C., 296; 9 S. E. R., 339. These acts are unconstitutional because contrary to natural right and fundamental principles of our government: 15 S. E. R., 727; 17 S. E. R., 134.</p>

<p>• Before Buchanan, J., Bamberg-, April, 1901.</p> <p>Action by F. W. Chitty vs. Pennsylvania 'Ry. Co. From order refusing to dissolve attachment defendant appeals.</p> <p>cites: Affidavit does not state a cause of action: 33 S. C., 353; 27 S. C., 130; 32 S. C., 157; 31 S. C., 307. On motion to dissolve, Judge can only consider -matters before the clerk: 24 S. C., 119; 31 S. C., 46. Attachment will not lie here for unliquidated damages for breach of contract: 1 Ency., 896; 24 S. C., 596; 31 S. C., 301; 27 S. C., 129; 2 Wait’s Pr., 145. Waples on Attachment, 112, 114. Shinn on Attachment, secs. 127, 132, 133, 142. Property attached is not such as is contemplated by the Code: Code, 156; 1 Ency., 916. Breach of contract occurred in Pennsylvania, and Court has no jurisdiction of subject of action: 13 S. C., 443; 17'S. C., 406.</p>

<p>Before Klugh, J., Abbeville, June, 1901.</p> <p>Motion in case of J. H. Wren against J. Altheus Johnson. From Circuit order, defendant appeals.</p> <p>cite: 2 Ency. P. & P., 625; 46 S. C., 11; 20 S. E. R., 985; 13 S. C., 202; 96 111., 131; 44 S. C., 181; 19 Ency. P. & P., 603; 95 U. S., 714; 28 Col., 151.</p> <p>cites : Order is in discretion ■ of Cóurt and not appealable: 17 S. C., 451; Code, 195; 19 S. C., 554; 38 S. C., 556.' . On main question: Freeman on Júdgts., 3 ed., 126; 2 Dillon, 351.</p>

Before Gage, J., Lexington, February, 1901. Action by John Campbell Bryce against R. W. G. Cayce and James Cayce. From judgment for defendants, plaintiff appeals. ■ cite: Title cannot be shown by general repute: 48 S. C., 477. Declarations in favor of one’s title are not admissible: 36 S. C., 598; 48 S. C., 486; 18 S. C., 494. Execution of a lost paper must be proved before contents: 14 S. C., 594; 37 S. C., 102.

<p>Before Townsend, J., August, 1901.</p> <p>Motion in case of Martha Halk against Laura IT. Stoddard. From refusal of motion, plaintiff appeals.</p> <p>cites: Judge having stated he had no power to grant the motion except for fraud, &c., it should be reversed: 17 S. C., 207; 26 S. C., 581; 16 S. C., 116; 20 S. C., 282.</p> <p>cites: Refusal of motion to recommit is zvithin discretion of Judge: 17 S. C., 21; 19 S. C., 600; 26 S. C., 581; and is not appealable: 39 S. C., 436; 18 S. C., 601; 31 S. C., 203; 8 S. C., 50. Also motions for nezv trials on after-discovered evidence are addressed to his discretion: 28 S. C., 606; 33 S. C., 403; 15 S. C., 547; 38 S. C.,227.</p>