duty of keeping such appliances in good order, which includes proper repairs, that master shall keep all machinery and appliances in repair. This exception is overruled.

(23) We do not see that the judge's charge was improper. He charged the law of this state. He did not use language which made the master a guarantor of the machinery and appliances, especially as the circuit judge was careful to say, "Provided, the negligence of the master was the direct and proximate cause of the injury," etc. This exception is overruled.

(24) There was no error here. The servant does not assume the risks of the master, and, as we have seen it, it is the master's duty to furnish safe machinery and appliances, and keep the same in proper repair. Confine your criticism to what the judge actually charged. If a party wishes a fuller charge, he must ask for it. Then, if the circuit judge is in error, there is just ground of complaint. This exception is overruled.

(25) The Constitution is a full protection of the servant as to defective machinery and appliances. See section 15 of article 9, which has been construed in the case of Rutherford v. Southern Ry., 56 S. C. 446, 35 S. E. 136, especially at pages 454 and 455, 56 S. C., and pages 138, 139, 35 S. E. This exception is

overruled.

(26) We do not regard the charge of the judge as a charge upon the facts. He is only laying down the law to govern the jury. He nowhere refers to the testimony itself; he nowhere tells the jury that the testimony in this case is such; and it has been frequently held by this court that a master may waive the most stringent rules. Take the policies of life insurance companies. How often is there found to be a waiver of the most stringent rule by their agent! Why may not a conductor or a vice principal, in the absence of the master, but in the discharge of his responsible duties, waive the performance of a duty required of a servant under a particular rule? This exception is overruled.

(27) It is said that this charge is taken bodily from Boswell's Law of Personal Injuries, at page 279. Be that as it may, it is wellknown law that the master, or his personal representative, the conductor, may waive rules which have been formulated for the general conduct of its business. Exigencies arise when instant action must be taken. "Red tape" cannot be obtained. Prompt action must be taken. Rules must give way. This can be done, and is done, whenever the necessity arises which makes it either necessary or expedient. This exception is overruled.

(28) This exception cannot be sustained. Coupling or uncoupling cars with a stick, when the servant has never had a stick furnished him by the master, of course, is not law. Let this exception be overruled.

(29) Of course, it should have been left to the jury to say whether any change had been

made. This was all the circuit judge held. This exception is overruled.

(37) The circuit judge left it to the jury to say whether the plaintiff was performing his ordinary duties. It will be recalled that the duties of the plaintiff were those of a flagman on this train, and not of those of a coupler of cars or a brakeman. Having to obey the orders of the masters, on that day he was required to couple cars. The latter was not his ordinary or usual duty. The servant only assumes the risk of negligence of fellow servants. State v. Telephone Co., 61 S. C. 96, 39 S. E. 257, 55 L. R. A. 139, 85 Am. St. Rep. 870; 20 A. & E., 132; 12 A. & E., 989. This exception is overruled.

(38) The modification of a request as made by the circuit judge was properly made to meet the issues here presented. It was his duty to do so. This exception is overruled. (39) This exception must be overruled upon the same ground set out in 38.

(40) We think the circuit judge fairly presented the issue, and it would have been improper to have made this charge. The request assumed that the violation of the rule by the servant would be negligence. This exception is overruled.

(41) The modification of the request made by the circuit judge was proper. This exception is overruled.

(42) We think the circuit judge very properly refused to charge the quotient verdict would be illegal. Never suggest evil to a jury. Let them understand that 12 jurors must agree to a verdict, and that such verdict must be based upon the law and the evidence. It was within the judge's discretion, at any rate. This exception is overruled.

(43) The modification of the request to charge was in strict conformity to the rule set up in our Constitution of 1895. See section 15, art. 9. This exception is overruled.

5. Having overruled all the exceptions in this group, we will now dispose of the appeal relating to new trial:

"(46) Error of the presiding judge in refusing the defendants' motion for a new trial upon the following grounds: (a) The verdict in favor of the conductor and the engineer settled in the railway company's favor the question of its liability by reason of the alleged negligence of those servants. There was nothing left in the case then, except the alleged negligence regarding the defective coupler. The evidence as to that showed that it was not the proximate cause of the injury. (b) The plaintiff knew of the defective coupler before he went in between the cars, and, that defect not having been the proximate cause of the injury, he assumed the risk, and was guilty of negligence which caused or contributed to the injury. (c) The plaintiff, by stipulation, agreed not to go in between cars, while in motion or attached to an engine, for the purpose of coupling. He did so, was injured, and is now precluded from recovering damages. (4) The rules likewise for

bid this action. He violated them, was injured, and is now precluded from recovering damages. (f) The verdict shows that there was no joint and concurrent negligence, as alleged." We should state that the appellant admitted that our recent cases of Schumpert v. R. Co., supra, and Gardner v. R. R., supra, seem to conclude these questions of appeal. We hold that they do. Accordingly we overrule these exceptions.

6. We will next consider the exceptions relating to motion in arrest of judgment. The following is the exception: "(47) Error of the presiding judge in overruling the defendants' motion in arrest of judgment upon the following grounds: (a) The alleged cause of action was the joint and concurrent negligence of the defendants. The verdict in favor of the conductor and engineer conclusively settles this question against the plaintiff. (b) The verdict is inconsistent with the plaintiff's cause of action." We remark that the appellant did not argue this exception. He alleged that it appeared to be governed by the two late decisions of this courtSchumpert v. R. Co., supra; Gardner v. R. Co., supra. He does not abandon these grounds, but still he does not argue them. We think these points are ruled by the principle upheld by those two cases just cited, and, for the reasons therein given, we overrule these exceptions.

7. Lastly, we will pass upon the questions made in the exceptions under the head, "Motion for Judgment." The exceptions are as follows: "(48) Error of the presiding judge in refusing the defendant's motion to direct judgment to be entered in its favor on the verdict upon the following grounds: (a) The alleged cause of action was the joint and concurrent negligence of the defendants. The verdict in favor of the conductor and engineer conclusively determines that the injury was not so caused. (b) The complaint and the testimony both showing that the alleged negligence of the railway company in the matter of defective coupling was not the proximate cause of the injury, there is nothing left in the case, except the alleged negligence in backing the train without signal, notice, or warning. This is shown in like manner to have been the act of the conductor or engineer, or both. The jury having found that neither of these servants was negligent in that or any other particular, no responsibility attaches to the railway company, their employer, for any act committed by them, or by either of them. When the act of the servants is determined not to have been negligence, the same act, treated as the act of the master, through the instrumentality of the servant, cannot be so. (c) In an action against master and servant for an injury caused by the alleged negligence of the servants, and a verdict is rendered in favor of the servants and against the master, the verdict in favor of the servants precludes a recovery against the master, and judgment should be rendered in favor of the master."

This exception must be overruled for these reasons: The master is responsible for the tort of his servants, committed by them during the administration of the duties of their offices, respectively. That the servants are not held responsible personally is because such torts were committed in the master's service. "One may be taken, and the other left." (b) We do not except the doctrine that the defective coupler was to be considered as the proximate cause of plaintiff's injuries. It was a compound made of several things or parts which made up the proximate cause of injury. This we have hereinbefore announced. (c) We do not hold with the plaintiff in this subdivision of his exception. We do not think that a verdict in favor of the servants turns the master loose thereby. This exception is overruled.

It is the judgment of this court that the Judgment of the circuit court be, and it is hereby, affirmed.

WOODS, J., concurs in the result.

MARION v. BARNWELL. (Supreme Court of South Carolina. Dec. 8, 1903.)

APPEAL-MOTION TO REINSTATE-DELAY. 1. Where an appeal was dismissed, a motion to reinstate it on the ground that a motion for further time to perfect the appeal was dismissed on default on account of illness of counsel for appellant will be denied where the delay of more than a year in making the motion is unexplained.

2. A motion to reinstate an appeal from an order refusing a temporary injunction against a sale which has since actually occurred will be denied, the appeal being of no practical value.

Action by Sophia S. F. Marion against Joseph W. Barnwell. Judgment for defendant, and plaintiff appeals. Appeal dismissed. Motion to reinstate dismissed. Julian Fishburne, for the motion. Burke & Erckemann, opposed.

PER CURIAM. After the order of sale was made in this case, the plaintiff appealed to Hon. D. A. Townsend, Circuit Judge, for an order enjoining the sale. The motion was refused, and the sale was made. Notice of appeal was given, and the plaintiff gave notice that she would move before this court at the November term, 1902, for an order extending time to perfect this appeal. This motion was dismissed for failure of plaintiff to appear. Nothing further was done in the cause, although the April term of the court intervened, until November 20, 1903, when notice -was given of this motion "for an order to reinstate the appeal taken in this cause from the order of his honor Judge D. A. Townsend, made March 24, 1902, said appeal having been dismissed for default of appearance." The ground upon which the motion is based is the illness of the plaintiff's attorney at the

November term, when the former motion was dismissed. This is, of course, ordinarily good ground for relief; but we do not think it should be granted where there has been such long delay, especially when, in the meantime, the rights of the third parties who purchased at the sale would be disturbed. It is no answer to this to say no notice of the former order of the court was given, for the plaintiff was the moving party, and is charged with notice of disposition of her motion at a time and place fixed by herself. Rule 20 has no application, for the order made at the November term, 1902, only refused further time to perfect the appeal, and was not an affirmance of a decree or order, or dismissal of an appeal.

Aside from the foregoing considerations, this being an appeal from an order refusing a temporary injunction against a sale which has since actually occurred, the review of the order appealed from by this court could have no practical effect.

The motion is therefore dismissed.

MUCKENFUSS v. FISHBURNE et al. (Supreme Court of South Carolina. Aug. 3, 1903.)

FORECLOSURE-JUDGMENT-MOTION TO OPEN

-DELAY-APPEAL-STAY.

1. Where, on foreclosure, an application to open the judgment was based on the same ground which had been presented to another judge on an application to continue the case, which application was denied, and the application to open the judgment was not made until after a sale of the property, and no excuse was given for the delay, a refusal to open the sale was proper.

2. Unless a bond is given on appeal from an order of sale in foreclosure, as required by Code Civ. Proc. § 352, the sale is not stayed.

3. Where an appeal from an order is dismissed, it is conclusive on all questions raised thereunder.

4. An appeal from a nonappealable order does not stay further proceedings below.

Appeal from Common Pleas Circuit Court of Dorchester County; Gary, Judge.

Foreclosure by Harriet E. Muckenfuss against Helen M. Fishburne and Sophie F. S. Marion. Defendants appeal from order refusing to set aside judgment of foreclosure. Affirmed.

Julian Fishburne, for appellants. Burke & Erckemann and Simons, Siegling & Capplemann, for respondent.

WOODS, J. This action was instituted January 3, 1901, for the foreclosure of a mortgage on two lots situated in the town of Summerville, S. C., given by Helen M. Fishburne, March 3, 1894, to secure the payment of a bond executed to the plaintiff by Helen M. Fishburne and Sophie F. S. Marion. Plaintiff also demanded judgment against the defendants for the amount due on the bond. Mrs. Fishburne, in her answer, denies all liability under the bond and mortgage, al

leging that she signed the same, at the request of her husband, as guarantor or surety of her codefendant, Mrs. Marion; that the money borrowed on said security was borrowed and used for the payment of the individual debts and liabilities of Mrs. Marion, and that no part thereof went into her hands, or was used for her individual benefit or that of her separate property; that at the time of signing the bond and mortgage she was a married woman, and that under the law then in force she could not bind or make herself liable on any contract or obligation except those relating to and for the benefit of her separate estate. The answer of Mrs. Marion, as far as it goes, is to the same effect. By consent of the parties, it was referred to the master of Dorchester county to take the testimony in the cause and report the same to the court. The master's report was filed February 1, 1902. Mr. D. H. Behre, who was defendants' counsel at that time, filed exceptions to this report. The cause came on for trial at the February term, 1902, of the court of common pleas for Dorchester county, Judge Townsend presiding. Messrs. Izlar Bros., who originally represented the defendants, had withdrawn from the case, and had been succeeded by Mr. D. H. Behre. An accident had recently befallen Mr. Behre, which prevented his attendance, and no counsel appeared for defendants. In view of the circumstances the case was continued, and, to speed the hearing of the cause upon its merits, the court ordered that, besides the testimony already taken and filed, the master take and report such additional testimony as might be offered, and file his report of same at least 10 days before the next term of court. The defendants appealed from this order, and upon the hearing in this court the judgment below was affirmed. See Muckenfuss v. Fishburne, 65 S. C. 573, 44 S. E. 77.

While this appeal was pending at the May term of court, 1902, Judge Gage presiding, the case was again called for trial. Mr. Julian Fishburne, agent of the defendants, appeared in their behalf, and asked for a continuance, stating that he had employed Maj. Jas. F. Hart as counsel, and as explanatory of his absence exhibited a telegram from him, of which the following is a copy: "Yorkville, S. C., May 17th, 1902. To Julian Fishburne, Summerville, S. C. Cannot go to Georges, been sick all week. Sorry. [Signed] Jas. F. Hart." The presiding judge refused the motion on the ground that he was satisfied it was for delay, and without merit, and proceeded to a trial of the cause on the pleadings and testimony, holding that the appeal from the order of Judge Townsend did not arrest the further progress of the action. In a decree filed May 19, 1902, the exceptions to the master's report were overruled, and it was ordere that judgment be entered against the defend

ants for the amount found due on the bond and mortgage, and that the mortgaged property be sold by the master on sales day in July, 1902. The defendants gave notice of appeal from this order and decree, but failed to perfect their appeal within the required time. Notice was afterwards given of a motion in this court to extend the time in which to serve the case and exceptions, but, the defendants failing to appear, the motion was dismissed November 25, 1902.

Pursuant to the order of Judge Gage, the master sold the mortgaged property on July 7, 1902, and executed a deed for the same to the purchaser. His report of sale and disbursements was filed August 16, 1902. The defendants thereupon gave notice that they would object to the confirmation of the report, setting out a number of exceptions thereto. Prior to the sale, Julian Fishburne, husband of the defendant Helen M. Fishburne, gave notice to the master that, as the head of a family, he was entitled to a homestead in the lands and buildings advertised to be sold, and that the same should be set off and assigned to him.

At the October term of court, 1902, Judge Gary presiding, the cause came on for a hearing on a motion by plaintiff to confirm the report of sale and a motion by defendants upon exceptions that the same be not confirmed. Defendants also moved to be relieved from the judgment, order, and decree taken in the cause, and that the master's deed be canceled, setting up in an affidavit that the said order and decree was taken through their surprise and excusable neglect by reason of the illness and nonappearance of their counsel, Maj. Hart, and that at the times the decree and the sale were made an appeal from a previous order was pending in the Supreme Court. The defendants' motions were overruled, and the master's report of sale confirmed in an order filed November 3, 1902, the presiding judge holding that there were no facts which would justify him in refusing to confirm the report; that the matters and things referred to in defendants' exceptions were before Judge Gage on the hearing of the main cause, and therefore were not subject to review by him; and that the judgment, order, and decree was not taken against the defendants by reason of their mistake, inadvertence, surprise, or excusable neglect. From this order defendants appeal.

The first, second, third, fourth, fifth, and eighth exceptions charge abuse of discretion and error of law by Judge Gary in refusing to open the judgment of foreclosure and sale made by Judge Gage on the ground of inadvertence, surprise, and excusable neglect. The record disclosing this application to Judge Gary was based on practically the same grounds which had been presented to Judge Gage on the application to continue. the cause. In addition to this, the application to open the judgment was not made till after

the master had sold the property, and no excuse was given for the delay. It is quite clear it would have been very improper in Judge Gary to attempt to open the judgment under these circumstances.

No reason is stated, and we can discern none, why Judge Gage did not have jurisdietion of the cause when he ordered the sale. Besides, no question of this sort could be considered except under appeal from the decree of Judge Gage, and that appeal was dismissed. The sixth exception is therefore overruled.

When the court orders property to be sold to satisfy a mortgage, notice of appeal from the order does not stay the sale, unless an undertaking is given as required by Code Civ. Proc. § 352. No undertaking was given, and hence the seventh exception must fail.

The right of homestead, and the question whether Mrs. Fishburne was bound by the mortgage, being a married woman, claiming the mortgage was given for the exclusive benefit of Mrs. Marion, her codefendant, were necessarily adjudged by Judge Gage's decree, and could not be reconsidered by Judge Gary. When the appeal from the decree of Judge Gage was dismissed, all the questions which appellants attempt to make in the ninth and tenth exceptions were finally determined.

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

On Rehearing.

(Dec. 8, 1903.)

PER CURIAM. We are unable to find that any exception taken by defendants, or any material fact or principle of law, has been overlooked in the decision of the abovestated case. It seems hardly necessary to say the appeal from the order of reference made by Judge Townsend did not operate to stay further proceedings in the circuit court, or effect its jurisdiction to hear the cause, for the reason that such order of reference was not appealable. Muckenfuss v. Fishburne, 65 S. C. 573, 44 S. E. 77; 2 Cyc. 889. The petition for a rehearing is therefore refused, and the order heretofore granted staying the remittitur is revoked.

the circumstances must point to his guilt to the exclusion of any other reasonable hypothesis, is not error.

2. Where there is any evidence to sustain a conviction, a refusal of a new trial will not be disturbed.

Appeal from General Sessions Circuit Court of Hampton County; Purdy, Judge.

Henry Jackson was convicted of stealing sheep, and appeals. Affirmed.

W. S. Smith and Jno. S. Reynolds, for appellant. Asst. Atty. Gen. Townsend, for the State.

WOODS, J. At the fall term, 1902, of the court of general sessions for Hampton county, the defendant was convicted of stealing a sheep. In charging the jury the presiding judge said: "So far as circumstantial evidence is concerned, if it convinces your minds of the guilt of the defendant beyond a reasonable doubt, it is just as satisfactory evidence as any other evidence. I charge you in reference to that, however, that when one seeks to convict on circumstantial evidence, you must be satisfied of the guilt of the defendant beyond a reasonable doubt, and the circumstances must point to his guilt to the exclusion of any other reasonable hypothesis. That means no more than this: Having carefully considered all the facts and circumstances, does your mind lead you, as reasonable men, to the conclusion that this defendant is guilty of the offense? If it does, and your minds come to that conclusion from the surroundings in which he was placed, in reference to this matter, then it would be your duty to write a verdict of 'Guilty.' But if, after having calmly and carefully considered all the facts and circumstances of the case, you have a reasonable doubt that is to say, if you can say, 'We ought not to find the defendant guilty because we have a reasonable doubt, from the evidence, of his guilt'-then you will say, 'Not guilty,' because he is entitled to the benefit of every reasonable doubt. The state makes out its case beyond a reasonable doubt, and then, on the whole case as made out by the state and the defendant, he is entitled to such doubt."

There are several exceptions to the charge, but the only question raised is whether, in the latter part of the passage quoted, the presiding judge withdrew from the jury the proposition that conviction should not be based on circumstantial evidence, unless it is strong enough to exclude every other reasonable hypothesis than guilt. Where circumstantial evidence is relied on, the absence of reasonable doubt implies impossibility of explaining the evidence on any reasonable hypothesis of innocence. The effect of evidence not being sufficient to exclude every other reasonable hypothesis than guilt is to leave doubt of guilt more or less strong, according to the circumstances of the particular case. Taking all the language here used together, the jury could not have failed to re

ceive the impression that the accused could be convicted only in case they were convinced no theory of the testimony could be adopted which could produce reasonable doubt. It is manifest this is the true view of the law. If the defendant thought the statement not sufficiently clear, he should have asked from State the court more specific instructions. v. Milling, 35 S. C. 16, 14 S. E. 284; State v. Davenport, 38 S. C. 348, 17 S. E. 37.

A careful examination of the record does not lead to the conclusion that there was no evidence to sustain the verdict, and we cannot say there was an abuse of discretion in refusing a new trial.

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

MILSTER et al. v. CITY OF SPARTANBURG et al.

(Supreme Court of South Carolina. Dec. 8, 1903.) MANDAMUS-PARTIES-CITIES-COLLECTION OF TAXES-SURRENDER OF CHARTER-EFFECTESTOPPEL-EXEMPTIONS-LIMITATIONS.

1. In a petition for mandamus to enforce the right of a citizen, the state is not a necessary party, where it is not concerned in its sovereign capacity.

2. Where a city ought to have enforced the collection of taxes against a resident corporation, mandamus will lie to compel such enforcement, without previous demand.

3. The surrender of a city charter and the incorporation of a city under a general law do not destroy the right of the city to collect taxes and other debts due to it under the old charter, nor prevent the enforcement of debts due by the city.

4. A city cannot be compelled by mandamus to levy taxes for years previous to the Constitution of 1895, there having been no power given by statute prior thereto to assess property for past years, when it had for any cause been omitted from the assessment for those years.

5. Under the Constitution of 1895, which made the city assessment of property the same as that for the state and county as to the years since the adoption of the Constitution, mandamus will lie to compel the city to assess unpaid taxes for such years.

6. A city is not estopped to enforce omitted taxes for the reason that the council, without any authority or power so to do, exempted certain property from taxation.

7. Where a city has failed to enforce taxes against a corporation on the erroneous ground that it was exempt from taxation, and taxpayers seek by mandamus to compel the enforcement of such taxes, the analogy of the statute of limitations will be applied to the corporation required to pay back taxes for six years prior to the commencement of the proceeding.

Application of J. H. Milster and A. J. Abbott for writ of mandamus against the city of Spartanburg and Spartan Mills. Writ granted.

Scase & Hoke, for petitioners. Simpson & Bomar, Sanders & De Pass, and Ralph K. Carson, for respondents.

WOODS, J. J. H. Milster and A. J. Abbott, as residents and taxpayers of the city of Spartanburg, by their petitions filed in