Under Code Civ. Proc. 1902, § 194, authorizing amendment of pleadings, a complaint may be amended by striking out the name of two parties for whose benefit the action was instituted.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Parties, §§ 100, 101.]

2. APPEAL-AMENDMENT OF PLEADING.

Order amending pleadings by striking out names of certain parties is not appealable. [Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 649.]

3. PLEADING-AMENDMENT-SERVICE.

It is not error to serve on opposing parties an order permitting amendment of complaint by striking out certain words and inserting others without service of amended complaint. [Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, § 1007.]

4. SAME PERMISSION TO ANSWER.

Failure to provide in an order permitting an amendment permission to defendant to answer amended complaint is not error where permission is not requested.

Appeal from Common Pleas Circuit Court of Sumter County.

Action by Amanda McDaniel, administratrix of David McDaniel, against the Atlantic Coast Line Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

The following are the exceptions: "(1) It is respectfully submitted that his honor erred In permitting any amendments to the complaint, because the complaint does not state facts sufficient to constitute a cause of action, in that the action is brought 'for the use and benefit of the heirs at law and distributees of said decedent.' Whereas it appears from the complaint that the deceased left surviving him a wife and parents, and there is no action under the statute for 'the heirs at law and distributees,' unless there be no wife, child or children, parent or parents. (2) It is respectfully submitted that his honor erred in allowing the plaintiff to amend the complaint by striking out the words 'and his father, Adam J. McDaniel, and his mother, Susan McDaniel,' in that, the action having been brought for the use and benefit of the heirs at law and distributees of the deceased, it was error of law to exclude from the benefit of the statute any who belong to the class 'heirs at law and distributees.' It is respectfully submitted that his honor erred in allowing the plaintiff to amend the complaint by striking out the name of Adam J. McDaniel, in that, the action being brought for the benefit of the heirs at law and distributees, it was error of law to allow the

(3)

plaintiff to so amend the complaint as to exclude from the benefits of the action the said Adam J. McDaniel, who is one of the heirs at law and distributees of the deceased. (4) It is respectfully submitted that his honor erred in allowing the plaintiff to amend the complaint so as to allege as follows: "To wit, his widow, the plaintiff, Amanda McDaniel, his sole heir at law and distributee, he having left no children'-in that the widow is not the sole heir at law and distributee, and cannot be such unless there be no father, mother, brother or sister, child, lineal ancestor, or next of kin. (5) It is respectfully submitted that his honor erred in providing in said order 'that this order stand as the said amendment, and that a copy hereof be served upon the attorneys for the defendant,' in that the Code of Civil Procedure of 1902, § 167, provides that if the complaint be amended a copy thereof must be served on the defendant,' and this order attempted to dispense with the necessity for the service of such copy of the amended complaint. (6) It is respectfully submitted that his honor erred in not allowing the defendant to answer the amended complaint when served, in that the Code of Civil Procedure of 1902, § 167, provides that the defendant must answer the amended complaint within 20 days, or the plaintiff may have judgment by default."

P. A. Wilcox, Mark Reynolds, and Cooper & Fraser, for appellant. Lee & Moise, for respondent.

GARY, A. J. This is an action, under Lord Campbell's act, for the wrongful killing of the plaintiff's husband.

The seventh and eighth paragraphs of the complaint are as follows: "(7) And the plaintiff further alleges that the said defendant, David McDaniel, departed this life intestate, leaving as his heirs at law and distributees, and solely entitled to his estate, his widow, the plaintiff, Amanda McDaniel, and his father, Adam J. McDaniel, and his mother, Susan McDaniel. (8) And the plaintiff further alleges that on the 2d day of January, 1902, she, as the widow of said decedent, was duly appointed by the court of probate for Sumter county administratrix of the estate of the said David McDaniel, deceased, that she was duly qualified as such administratrix, and is now discharging the duties of her said office, and brings this action in her representative capacity under and in pursuance of the provisions of the Constitution of said state, and the statutes thereof; that is to say, under sections 2852, 2853, 2854, of the codified statutes of said state (1902), which are commonly known as 'Lord Campbell's Act,' and the acts amendatory thereof, and for the use and benefit of the heirs at law and distributees of said decedent entitled under said statutes." Upon motion, his honor, the presiding judge, ordered that the plaintiff have leave to amend her complaint in the following particulars: By striking out the

words, in paragraph 7, "and his father, Adam J. McDaniel, and his mother, Susan McDaniel"; and, in paragraph 8, by inserting the word "aforesaid," before the word "heirs"; and by adding at the end of said paragraph the following words: "To wit, his said widow, the plaintiff, Amanda McDaniel, his sole heir at law and distributee, he having left no children." He further ordered that this order stand as the said amendment, and that a copy thereof be served upon the attorneys of the defendant. The defendant appealed upon exceptions which will be set out in the report of the case. When the case was called for hearing in the Supreme Court, the respondent's attorneys interposed the preliminary objection that the order is not appealable.

1. Section 194 of the Code is as follows: "The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; or by inserting other allegations material to the case; or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved." The effect of the amendment was merely to strike out the names of two of the parties for whose benefit the action was instituted, and did not involve the merits. Therefore it was not appealable. But, waiving such objection, the appeal must be dismissed, as the court, by the express terms of the statute, was empowered to grant an order allowing said amendment. This disposes of the first, second, third, and fourth exceptions.

2. The case of Guess & Glover v. Railroad, 73 S. C. 267, 53 S. E. 421, shows that there is no merit in the fifth exception.

3. And the sixth exception cannot be sustained, as the record does not disclose the fact that the defendant requested permission to answer the amended complaint.

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

(76 S. C. 39)

STATE V. JOHNSON. (Supreme Court of South Carolina. Jan. 17, 1907.)

1. CRIMINAL LAW-APPEAL BY STATE.

The state has a right of appeal from a judgment of the general sessions, holding a city ordinance unconstitutional on appeal by defendant from conviction by city court.

2. WEAPONS - CONSTITUTIONAL LAW-RIGHT TO BEAR ARMS.

An ordinance of a city prohibiting the firing of guns within its limits is not unconstitutional as infringing on the right of a citizen to bear arms.

3. STATUTES-PARTIAL INVALIDITY.

Statutes that are constitutional in part only will be upheld so far as they are not in

conflict with the Constitution, provided the allowed and the prohibited are severable. [Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, § 58.]

Gary, A. J., dissenting.

Appeal from General Sessions, Circuit Court of Charleston County.

J. W. Johnson was convicted of a violation of a city ordinance, and from a judgment of the sessions court, reversing the conviction, the state appeals. Reversed.

P. T. Hilderbrand and Geo. H. Moffett, for the State. Wm. Henry Parker, for respondent.

POPE, C. J. The defendant was convicted before the police court in the city of Charleston for violating the 694th section of the city ordinances of Charleston, S. C., for firing a gun in said city, and was duly sentenced to pay a fine of $10. From this sentence the defendant appealed to the court of general sessions of Charleston county on the following two grounds: First, that section 694 of the city ordinances is unconstitutional, null, and void, in that it interferes with the constitutional right of the citizen to bear arms, and also discriminates against one class of citi zens in favor of another class of citizens; and, second, that the fine imposed is excessive. This appeal, on the aforesaid grounds, came on for a hearing before his honor, Judge Townsend, who decided that such judg ment should be set aside, and the defendant discharged. From that decision the city council has appealed upon the following five grounds:

"(1) Because his honor erred in holding as follows: 'An examination of the ordinance suggests that its apparent intent and purpose was, in the exercise of the police power of the municipality, to guard against certain risks and annoyances resulting from the unrestricted use of fireworks, making of fires or bonfires in the open and flying of kites, the evident purpose being to restrict the community, not in matters of great moment or necessity but rather in more trivial matters, amusement and pastime.' Whereas, his honor should have held that the said ordinance was passed in the exercise of the discretion vested in the city of Charleston for the protection of the life and safety of the inhabitants of the city, and not in trivial matters of amusement. (2) Because his honor erred in holding that 'by an inconsiderate afterthought, the firing of "any gun, pistol or other firearms" was included in the ordinance in such terms as amount to an absolute prohibition, unless it be on occasion of some military parade.' Whereas, it is respectfully submitted that the ordinance does not amount to an absolute prohibition of the constitutional right to bear arms, but is a wise and necessary regulation for preserving peace and order within the city. (3) Because his honor erred in holding that the ordinance would in terms deprive the citizen of this right [to bear arms], and

is therefore, in so much as relates to firearms, unconstitutional and void. Whereas, his honor should have held that the ordinance in question was a salutary and wise regulation of the use of firearms within the limits of the city of Charleston, and was necessary for the protection, security, and welfare of the inhabitants of the community. (4) Because his honor erred in holding that the ordinance in question excepted coopers alone from the operation of a part of the ordinance, on the ground, presumably, of the inconvenlence that would result to them in their business, would seem an unjust discrimination In favor of that class of citizens, and might add another element of unconstitutionality to that which has been already adjudged. Whereas, his honor should have held that defendant was charged solely with the offense of violating that portion of the ordinance which prohibits the firing of a gun within the limits of the city of Charleston, to which the exemption of coopers did not apply, and that even if a portion with which defendant was not concerned of the ordinance would be held unconstitutional, that this would not affect the other portion of the ordinance which was before the court. (5) Because his honor erred in ordering that the judgment of the police court be set aside and the defendant discharged; whereas, his honor should have affirmed said judgment."

1. The majority of the court are of the opinion that the state has the right of appeal In this case. The authorities settle that the state has the right of appeal from an order quashing an indictment. State v. Young, 30 S. C. 399, 9 S. E. 355; State v. Bouknight, 55 S. C. 357, 33 S. E. 451, 74 Am. St. Rep. 751. In State v. Long, 66 S. C. 398, 44 S. E. 960, this court entertained an appeal in behalf of the state on question raised in a manner similar to this case, treating it in substance as a motion to quash the indictment, or as a demurrer to the indictment. It is true, that the right of the state to appeal was not questioned in that case, but neither is such question made by counsel in this case.

mand; or shall raise or fly any kite or other like paper, in any part of the city, under penalty of $10, or imprisonment not exceeding 30 days, for each and every offense." An inspection of the section shows that the city council was acting in the course of its duty as the police power when it placed upon its statute book the section in question. It does not prohibit Mr. Johnson, the accused, from possessing a shotgun on his own premises. All it does is to prevent his firing such gun within the city limits, and this is clearly within the power of such city council, 22 Am. & E. Ency. of Law, 916, 918; Act of the Legislature of this state, ratified on August 13, 1783, where it is held: "That the city of Charleston shall be vested with full power and authority to make and establish by-laws, rules and ordinances respecting the harbor, streets, regulating of seamen or disorderly people, negroes, and in general every other by-law or regulation that shall appear to them requisite and necessary for the security, welfare and convenience of said city, or preserving the peace, order and good government within the same." The defendant seems to lay great stress upon the fact that such portion of this ordinance as gives the coopers in said city the right to make fires below the curtain line where they carry on their work respectively, discriminates in favor of the coopers and against all other persons, thereby rendering the act unconstitutional. But such is not the case, for it does not interfere with the rights of any citizens, as cooper who may wish to adopt that business in the use of firearms in their business. Even if this ordinance did discriminate against other citizens in favor of coopers, as complained of, all persons, without regard to any business or calling, are prevented from firing guns in the city, which is perfectly constitutional and within the exercise of the police power of the city. It is well known that part of an act is constitutional even where another part of the same act may be held unconstitutional, as is well

First. We do not regard this ordinance unconstitutional and void, the section in question reading as follows: "No person or persons shall fire any squibs, crackers or other fireworks within the city, except at times of public rejoicing, and at such times and places as the mayor may under his hand permit it; or shall burn any chips, shavings or other combustible matter, in any street, lane, alley, or open or enclosed lot, within the city [coopers excepted, who shall be permitted to make fires below the curtain line with the consent of the proprietors of the lots where they carry on their work respectively]; or shall fire any gun, pistol or other firearm within the limits of the city, unless it be on occasion of some military parade, and then by the order of some officer having the com56 S.E.-35

are constitutional in part only will be upheld so far as they are not in conflict with the Constitution; provided, the allowed and prohibited are severable." Citing Packet v. Keokuk, 95 U. S. 80, 24 L. Ed. 377. This ground of appeal is sustained.

Second. It seems that his honor did err in referring to the exercise of the police power of the city, by stating that it was an afterthought in said city council in providing that the firing of guns or other firearms was an absolute prohibition-the having such gun, etc. There was no absolute prohibition against the possession of said firearms, it was only the firing of the same that was prohibited, and could not be held, therefore, as an afterthought. This ground of appeal is sustained.

The third and fourth grounds of appeal

are sustained, in accordance with our views herein before expressed.

As to the fifth ground of appeal, it appears almost of necessity that the circuit judge's judgment is erroneous and must be overruled.

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

WOODS, J., concurs in the result.

GARY, A. J. (dissenting). As I am unable to concur in the opinion of Mr. Chief Justice POPE, I will state briefly the grounds of my dissent.

The defendant was convicted in the city court of Charleston, for firing a gun, in violation of the city ordinance, and was sentenced by the recorder to pay a fine of $10. He appealed to the circuit court, on the ground that the ordinance was unconstitutional; the appeal was sustained and he was discharged, whereupon the state appealed.

We are met at the threshold with the question, whether the state had the right, in this case, to appeal? Section 57 of the CrimInal Code of 1902 provides that, "every objection to any indictment for any defect apparent upon the face thereof, shall be taken by demurrer or on motion to quash such indictment, before the jury shall be sworn, and not afterwards." The defendant had the right, before proceeding to trial upon the merits of the case, to raise the objection that the proceeding was fatally defective, in that the statute under which he was indicted was unconstitutional, either by demurrer or on motion to quash the indictment, but not afterwards. (He, however, did not exercise this right.) He likewise had the right to waive this mode of objection to the constitutionality of the statute, and to raise this question when put upon trial on the merits of the case. Mr. Chief Justice POPE contends that the state has the right to appeal from an order quashing an indictment, and that the defendant in this case, in effect, demurred to the indictment. There is no doubt as to the soundness of the proposition, that the state has the right to appeal from an order quashing an indictment, for the reason that a defendant cannot properly be said to have been in jeopardy until he is placed on trial upon a valid indictment. A motion to quash is preliminary in its nature, and does not involve the merits. But we cannot accede to the view that the objection Interposed by the defendant as to the constitutionality of the statute, was, in effect, a demurrer to the indictment. In the first place, the effect of the proposition that the defendant, in effect, demurred to the indictment, is to require the defendant, at the instance of the state, to rely upon a mode of bringing this question to the attention of the court, which he had waived, and which he could not thereafter insist upon, in order

that the state might have the right to appeal.

And, in the second place, it is apparent that the defendant was placed in jeopardy when he went to trial without making a motion to quash, or without demurring to the indictment, as such trial involved the merits of the case.

The order of the circuit judge discharging the defendant upon hearing the appeal from the sentence imposed by the recorder was, therefore in effect, an acquittal, from which the state could not appeal. State v. Ivey, 73 S. C. 282, 53 S. E. 428.

GARY, A. J. The complaint alleges that the plaintiff and the defendant entered into a contract, whereby the plaintiff agreed to sell to the defendant the timber on the land described in the complaint, for which the defendant agreed to pay $700. The action is to enforce specific performance, and the defendant refuses to comply with the contract, on the ground that the plaintiff is not the owner in fee of the land.

The attorneys for the respective parties entered into the following agreement: "It is hereby mutually agreed that this cause shall be tried by the court, on the pleadings and the deed from Timothy Prosser to Virginia C. Prosser, dated September 18th, 1895, and recorded in vol. 'V,' page 394, of the registrar's office for said county, on the 3d day of February, 1896, which said deed is admitted in evidence. It is agreed that the sole question to be decided by the court is as follows: Under the deed of Timothy Prosser above described, did Virginia C. Prosser take an estate in fee simple to the premises conveyed, or did she take only a life estate? If the court holds that Virginia C. Prosser took an estate in fee, then the plaintiff shall be adjudged entitled to the relief demanded in the complaint."

The deed is as follows: "The State of South Carolina, Williamsburg County. Know all men by these presents, that I, Timothy Prosser, of Williamsburg county, in the state aforesaid, in consideration of the sum of two hundred dollars to me in hand

paid at and before the sealing of the presents, by Virginia C. Prosser, of Williamsburg county, in the state aforesaid (the receipt whereof is hereby acknowledged), have granted and bargained, sold and released, and by these presents do grant, bargain, sell and release unto the said Virginia C. Prosser, all that the within mentioned messuage tenement and tract of land lying and being in the county and state aforesaid, and containing one hundred and eighty acres, it being one-half of a tract of land purchased under tax sale against the estate of Joseph W. Kimball and sold by Joseph E. Brockinton as sheriff of Williamsburg county, July 6th, 1891, and bounding as follows: East by part of same tract, north in part on Lynch's river and land of Eldridge F. Prosser, west by lands of Mary E. and W. S. Eaddy, and there shall be at least sixteen feet reserved on west side of said tract of land as an outlet to public highway, south tract purchased of Mrs. S. G. B. Lawrence and known as tract No. 2, and surveyed by M. A. Thomas, January first, 1891. (And I do hereby reserve my life estate in said premises, to have and enjoy the same at will and pleasure so long as I shall live.) Together with all and singular the rights, members, hereditaments and appurtenances to the said premises belonging or in any wise incident or appertaining: To have and to hold all and singular the said premises before mentioned unto the said Virginia C. Prosser, her lifetime, and at her decease to her lawful heirs heirs and assigns forever. (I reserving my life estate in the said above mentioned premises, to have and enjoy the same at will and pleasure so long as I shall live.) And I do hereby bind myself and my heirs, executors and administrators, to warrant and forever defend all and singular the said premises unto the said Virginia C. Prosser, her heirs and assigns against me and my heirs or any other person or persons lawfully claiming or to claim the same or any part thereof."

*

His honor, the presiding judge, ruled that the use of the word "heirs" twice in the habendum clause was a mere clerical error and surplusage, that the grantee named in the deed (from whom the plaintiff traces title) took an estate in fee simple, and that the plaintiff was entitled to the relief demanded in the complaint. "As stated in the foregoing agreement, the only question is whether the grantee took an estate for life or in fee simple." This case is conclusively settled by the case of Danner v. Trescot, 5 Rich. Eq, 356, 358, in which the court affirmed the decree of Chancellor Dargan, who said: "I am aware of no case, English or American, where, even in reference to personal property, this idea of cutting down what would otherwise be a fee by superadded words of limitation, indicating an intent to create a new stock, has ever been applied in a case where the gift to the first taker was to him and his heirs general" Jarman (2 Jarm. Wills,

271) lays down the doctrine broadly: "That, where the superadded words amount to a mere repetition of the preceding words of limitation, they are, of course, inoperative to vary the construction." This language is quoted with approval in the case of Danner v. Trescot, 5 Rich. Eq. 356.

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

(143 N. C. 607)

STATE v. HUNTER. (Supreme Court of North Carolina. Feb. 19, 1907.)

1. CRIMINAL LAW-EVIDENCE-TRAILING BY BLOODHOUNDS.

On a trial for arson a witness testified that defendant had a peculiar track; that he knew his track well, and that no one else in the neighborhood made such tracks; that the tracks found on the morning following the fire about the burned building were defendant's, and that the tracks led from the burned building to the road leading to defendant's house. The owner of a bloodhound testified that his dog was a clear-blooded English bloodhound, well trained to track human beings; had often been used for that purpose, and would not track anything else; and that he put the dog on these tracks the afternoon succeeding the fire. Held, that evidence that the dog followed the tracks up to and across the road, when he seemed to catch the scent of something in the air, whereupon he broke off through the woods and finally treed defendant, was competent. 2. SAME OF COURT-CONTINUANCE.

APPEAL

REVIEW

DISCRETION

The refusal of a mistrial and continuance after the evidence is all in rests in the sound discretion of the trial court and is not reviewable.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3053.]

3. ARSON-TRIAL-QUESTION FOR JURY.

In a prosecution for arson, evidence held to require submission of defendant's guilt to the jury.

4. CRIMINAL LAW-EVIDENCE-TRAILING

OF BLOODHOUNDS-CorroboRATING OTHER EV

IDENCE.

In a prosecution for arson, the trailing by a bloodhound of tracks, testified to on the part of the state as being defendant's, to defendant, though not substantive evidence upon which a conviction could be had, is evidence in corroboration of the state's testimony as to the identity of the tracks.

Appeal from Superior Court, Gates County; McNeill, Judge.

Thos. H. Hunter was convicted of feloniously burning a storehouse in the nighttime, and he appeals. Affirmed.

L. L. Smith and Aydlett & Ehringhaus, for appellant. The Attorney General and W. M. Bond, for the State.

CLARK, C. J. Indictment for felonious ly burning a storehouse in the nighttime There was evidence that the ground behind the storehouse was soft and had been fresh. ly plowed, and witness testified that next morning the prisoner's tracks were found there, leading off from the storehouse; that he had known prisoner all his life, and that