1. Gen. St. S. C. § 2184, limits the parties for whose benefit an action can be maintained for the killing of a person, to the wife, husband, parent, and children of the deceased. Held, that a complaint which failed to show that deceased left surviving him any persons bearing such relation, though it alleged that "plaintiff and children" were dependent on him, was defective.

2. In such case, plaintiff was properly refused permission to amend at the trial by alleging that she was the widow of deceased, and that she sued for the benefit of herself and his children, especially where the time within which to bring such action had elapsed, as it would have entirely changed the nature of the action, contrary to the provisions of Code S. C. § 194.

Appeal from common pleas circuit court of Chester county; FRASER, Judge.

Action by Sarah Lilly, administratrix of Green Lilly, deceased, against the Charlotte, Columbia & Augusta Railroad Company. From a judgment sustaining defendant's demurrer to the complaint, and from an order denying leave to amend the complaint, plaintiff appeals.

Whitlock, Curtis & Hamilton, for appellant. J. C. Haskell, for respondent.

SIMPSON, C. J. One Green Lilly, the intestate, in 1887, while employed by the defendant company as a brakeman on its train, lost his life by the breaking and giving away of a certain trestle on the road. The plaintiff (appellant) administered upon his estate, and brought action below for damages. There was no allegation in the complaint that the plaintiff was the widow of the deceased, or that he left children or any other kin; the complaint simply stating "that said plaintiff and children

of tender years were solely dependent for a support and subsistence upon him, and by reason of his death, i. e., of the death of the said Green Lilly, are left utterly hopeless and destitute, and are damaged in the sum of ten thousand ($10,000) dollars;" wherefore, etc. The answer of defendant denied each and every allegation in the complaint. At the trial, the complaint being read, the plaintiff's attorney moved for leave to amend it, by adding to paragraph 6 therein the following words, to-wit: "That said plaintiff was the widow of said Green Lilly, deceased, and she brings this action for the

by the said Green Lilly. His honor, Judge FRASER, refused the motion, assigning as a reason therefor that, if it was allowed, it would entirely change the nature of the action. Whereupon the defendant's attorney interposed an oral demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, which was sustained, and an order made dismissing the complaint, with costs. The appeal of the plaintiff questions the correctness of his honor's ruling, both as to refusing the amendment and in sustaining the demurrer.

A good rule by which to test the sufficiency of a complaint, when assailed by a demurrer like that interposed here, is to inquire what facts are necessary to constitute a cause of action, and then to ex amine whether such facts are alleged; the plaintiff in his evidence being confined to such alleged facts. The action below was brought under sections 2183, 2184, Gen. St., which, contrary to the common law, allows actions in certain cases to be brought for injuries done to the person, even after the death of such person. Section 2184, however, distinctly specifies the parties for whose benefit such actions are allowed, to-wit, for the wife, husband, parent, and children of the deceased. In order, then, for the administrator of such deceased to have a cause of action, there must be left one or more parties bearing the relation above to said deceased; otherwise the common-law principle governs. And, in order to allow plaintiffs to prove that such relations were left, there should be an allegation in the complaint to that effect, or the defendant might be taken entirely by surprise. The case of Conlin v. Charleston, 15 Rich. Law, 208, held that a defect in the complaint, like that here, would have been fatal on demurrer, but it was cured by a verdict, no demurrer having been interposed. In the complaint herein there was no such allegation. True, it is alleged that the plaintiff and children were dependent upon the deceased. But it does not follow that they were dependent because of the fact that they were his wife and children. They might have been dependent, and still not his wife and children. It does not appear from the complaint that there were any parties, either directly or indirectly, or by representation, interested in this action before the court. We think, therefore, that the demurrer was properly sustained.

Next, as to the amendment refused. Amendments are provided for in the Code, and allowed sometimes by the court, for certain purposes; and, while not entirely discretionary in the sense that the ruling of the court is unappealable in all cases, yet it must be a clear case of error when its discretion will be interfered with. In this case the demurrer was properly held fatal to the complaint, the effect of which was, in substance, to turn the plaintiff out of court on the ground that she had no cause of action. That was her status, even before the demurrer was interposed; and, although the motion to amend was made before the demurrer was interposed, yet, when his honor considered the motion

to amend, he was compelled to consider whether there was anything in the complaint to amend by, and, upon examination, he found no cause of action stated; and, if the amendment was allowed, it would not simply supplement a faulty statement of a cause of action by adding or striking out the name of a party, or by correcting a mistake in the name of a party, etc., or by inserting other allegations material to the case; but it would be absolutely giving a cause of action where none was alleged, and, in this case, where none could exist, for the reason that the two years allowed within which to bring such actions had elapsed. We think his honor was right in holding that the amendment proposed would have entirely changed the nature of the action, and therefore not allowable. Code, § 194. It is the judgment of this court that the judgment of the circuit court be affirmed.

JURY TRIAL-SUMMARY PROCEEDINGS BY LANDLORD JURISDICTION.

1. Gen. St. S. C. § 1819, providing that where tenants hold over after the expiration of their lease, or fail to pay rent when it becomes due, the landlord may enter and claim possession; and, in case of refusal by the tenants, a trial justice shall, on application of the landlord, serve notice on them to appear and show cause why they should not be dispossessed; and, if they fail to show sufficient cause, the justice shall forthwith issue his warrant, directing the sheriff to dispossess them, -does not violate the right of trial by jury.

2. The jurisdiction of trial justices in such cases is not ousted by raising the question of title.

3. While the circuit court can, on certiorari, correct the justice's errors of law, it cannot review the facts as found by him.

4. In such proceedings there is no error in refusing an accounting of the indebtedness of the defendants to the plaintiff on a bond and mortgage previously executed to plaintiff, under the foreclosure of which by sale he claims title.

Appeal from common pleas circuit court of Richland county; B. C. PRESSLEY, Judge.

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Action by Abigail Swygert against Rachel Goodwin and others under Gen. St. § 1819, providing that "in all cases where tenants hold over after the expiration of their leases, or shall fail to pay the rent when it shall become due, the landlord is hereby authorized and empowered, either in person or by agent, to enter upon the premises, and claim possession; and, in case of refusal or resistance, it shall be lawful for the person so letting said premises to apply to a trial justice, whose duty it shall be to have a notice served upon the person * * refusing to be dispossessed to show cause before him, within three days from the date of said personal service of such notice, why he should not be dispos sessed; and, if he fails to show sufficient cause, it shall be the duty of the trial justice forthwith to issue his warrant, directed to the sheriff, requiring him, without delay, to dispossess said person

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from the premises so let, and authorizing him to use such force as may be necessary." From an order dismissing certiorari proceedings to review the proceedings of the trial justice, defendants appeal.

John Bauskett, for appellants. Robert W. Shand, for respondent.

SIMPSON, C. J. Abigail Swygert, the respondent, made applications to Trial Justice MULLER, of the city of Columbia, Richland county, in this state, to have the defendants ejected from certain lands in said county, which she alleged they occupied as her tenants; further alleging that the lease in each case (four in number) had expired, that the rent past due had not been paid, that through her agent she had entered upon the premises, and demanded possession, which had been refused. Whereupon the said trial justice issued a notice in each case, requiring the defendants to show cause before him, within three days after service, why they would not be ejected according to section 1819 of the General Statutes. The defendants made return to this notice, in which they denied that respondent was their landlord, that they owed any rent to her, or that she had title to the premises in question; alleging that the respondent claimed under an illegal and invalid purchase of the property, and that the defendant Rachel Goodwin was really the owner in fee of the premises, with the exception of some six acres, which she had sold to the defendant Ben Goodwin. The cases were heard by the trial justice together, upon the testimony offered; and before he issued a warrant of ejectment the defendants petitioned his honor, Judge FRASER, for a writ of certiorari, which was granted, commanding the trial justice to certify and return to the court of common pleas for Richland county at the ensuing term all proceedings had before him in the premises; which return being made, the matter then came up before his honor, Judge PRESSLEY, who dismissed the proceeding in a short order, in which he decreed "that the return of the trial justice was sufficient, and that all proceedings thereunder be dismissed, and the record be returned to the trial justice who tried the cases. From this order the defendants have appealed, upon the following exceptions: (1) Because his honor erred in holding that the section under which the notice to show cause was issued, to-wit, section 1819, Gen. St. S. C., was not unconstitutional and void. (2) Because his honor erred in holding that said act and section, to-wit, 1819 of Gen. St. S. C., was not in violation of the constitution of the United States. (3) Because his honor erred in holding that the relators were not entitled to a trial by jury, they having demanded the same before the trial justice. (4) That his honor erred in holding that the trial justice had jurisdiction of the matters before him. (5) That his honor erred in holding that the relators were not entitled to an accounting before the trial justice. (6) That his honor erred in holding that in these proceedings, had for survey and revision of the proceedings before the trial justice, there being no other adequate

remedy, he had no power to review the facts.

It does not appear in the order appealed from what were the precise questions adjudged and determined by the presiding judge. The order simply held the return of the trial justice sufficient, and therefore dismissed the proceeding. The return of the trial justice states that, in addition to the written returns made to him, respondents claimed that section 1819 was in violation of the constitution of the state and of the United States; that, before going into the trial, the respondents demanded a jury, and that they claimed that the court was without jurisdiction, that the matter involved an accounting between the parties, and that the amount of the accounting was over $100. As the trial justice, notwithstanding their objection, nevertheless proceeded to hear the cases, and as the presiding judge held his return sufficient, we suppose we may assume that his ruling sustained the trial justice in disregarding said objections, and therefore the objections are properly before us. It has been decided in several cases in this state under certiorari proceedings, questioning the power of a trial justice to eject tenants, that the act of assembly in question was constitutional; that it did not violate the right of trial by jury; that trial justices had jurisdiction of such cases and that raising the question of title did not oust that jurisdiction; and, further, that while the circuit court could test the question of the jurisdiction of the trial justice in such cases, and correct his errors of law, that it could not review the facts as found by him. See O'Neale v. Fickling, 10 S. C. 301; State v. Marshall, 24 S. C. 508; Frazee v. Beattie, 26 S. C. 352, 2 S. E. Rep. 125,-where we think the questions above have been adjudicated as above. True, in this last case, the tenancy was acknowledged; but that can make no difference, because it has been settled in other cases that raising the question of title does not oust the jurisdiction of the trial justice. These cases, we think, conclude adversely the exceptions 1, 2, 3, 4, and 6.

As to exception 5, in which it is complained that defendants were not allowed an accounting in the matter of the indebtedness of defendants to respondent, not for rent, but for a bond and mortgage preriously executed to the respondent, and under the foreclosure of which by sale, by the mortgagee, the respondent claimed title. We fail to see the relevancy of this exception. The bond and mortgage were existing papers, with the amounts provided to be paid expressed therein, and we do not see that, in a contest like that before the trial justice, it was competent for him to go behind these papers into an inquiry as to the correctness of the consideration therein expressed. The questions before him were, were the defendants tenants of the respondent? had the rent been paid, and the lease expired? To these questions it appears to us the accounting claimed was irrelevant. It is the judgment of this court that the judgment of the circuit court be affirmed.

MCIVER and McGowAN, JJ., concur.

LANDLORD AND TENANT-REPAIR-APPEAL. 1. Where a tenant rents a house knowing at the time that the roof leaked, and there is no contract on the part of the landlord to repair, the tenant is not entitled to any deduction from the rent for repairing the roof.

2. It is not error to charge the jury that, where there is a contract by the landlord to repair he is responsible for all damages which the tenant sustains by reason of a breach of the contract, but, where the tenant's goods are exposed to injury from the leakage, he should not allow the injury to continue, but that it is his duty to make the repairs, and charge the same to the landlord, unless prohibited by the landlord from doing so.

3. An exception to the refusal of a motion for a new trial on the ground that plaintiff refused to remit from the verdict the amount of rent which it is alleged plaintiff received from one who rented the premises for the remainder of defendant's term after defendant had abandoned them, raises no question of law for the supreme court, when the question of fact has been properly submitted to the jury.

Appeal from common pleas circuit court of Spartanburg county; HUDSON, Judge. Action by Fielding Cantrell against W. D. Fowler to recover rent for the use of a store-house. Defendant appeals.

Thompson, Nicholls & Moore, for appellant. Duncan & Sanders, for respondent.

MCIVER, J. This was an action to recover rent for the use and occupation by defendant of a store-house belonging to plaintiff, in the city of Spartanburg. The defense was: First. A general denial. Second. That the house was rented by defendant upon the express condition that plaintiff was to do certain repairs necessary to keep the house from leaking; that this agreement on the part of plaintiff was not complied with, and, as a consequence thereof, defendant's goods were so much injured by leakage that he had to abandon the premises before the term expired; and that plaintiff subsequently rented the premises to another person, one Tolleson, for the remainder of the term. Defendant also set up two counterclaims, one for damages sustained by the injury of his goods from leakage; and, second, an account for goods sold by defendant to plaintiff. To these counterclaims plaintiff replied, denying the same. At the trial below, plaintiff offered testimony tending to show that the premises in question had been rented to one Poole, for the year 1883, at the rate of $35 per month; that on the 20th of October, 1883, Poole went out, and defendant took his place, agreeing to assume his contract for rent for the balance of that year; that towards the close of the year defendant applied to plaintiff to rent the house for the ensuing year, 1884, claiming, however, a deduction of the amount of the rent on account of the leakage and hard times, and, after some negotiation, plaintiff agreed, in consideration of the leakage, to reduce the rent for the year of 1884 to $25 per month; that the plaintiff made no contract to repair the premises, to prevent leakage or otherwise, as the rent had been reduced on that account, and plaintiff had previously made unsuccessful ef

forts to stop the leaks, which he thought arose, not from any defect in the roof, but from the carelessness of those who had charge of a ball room over the store, in leaving the windows open, and letting in the rain; and that Tolleson commenced to pay plaintiff rent from 1st January, 1885. The defendant, on the other hand, offered testimony to sustain all the allegations of his answer, and there is no doubt that there was much direct conflict in the testimony. The circuit judge, in his charge, which is fully set out in the case, left the various questions of fact to the jury, under instructions as to the law, and the jury found a verdict for the plaintiff, no doubt allowing defendant's counterclaim for goods sold by defendant to plaintiff, as there does not seem to have been any real dispute as to that, and the verdict was for a sum less than that claimed by plaintiff. A motion for a new trial having been made and refused, and judgment having been entered on the verdict, defendant appealed upon 13 grounds, which are set out in the record; but appellant's counsel, in the opening of their argument here, say that "after a thorough investigation of the law, as applied to this case, we have come to the conclusion that the only errors made by his honor in charging the jury were: (1) In instructing them that, in the absence of a contract to repair, it was the duty of the tenant to make repairs; (2) in charging them that, where there is a contract by the landlord to repair, the tenant was in duty bound to go so far as to make repairs, and charge them to the landlord; (3) it was error to refuse a new trial, or at least unless the plaintiff would remit from the verdict the amount he had received as rent from Alfred Tolleson during year 1884." We shall, therefore, regard these three as the only grounds of appeal in the case, and confine our attention to them.

As to the first ground, it would be sufficient to say that the jury were not instructed as there stated. What was in fact charged upon this branch of the case was that, in the absence of any contract on the part of the landlord to repair, he was not bound to make any repairs; and, if they were made by the tenant, he could not claim any deduction from the rent on that account. This was undoubtedly correct, as may be seen by reference to the case of the City Council v. Moorhead, 2 Rich. Law, 430. Indeed, it seems to be conceded in the argument of counsel for appellant that, where there is no contract, the tenant, if he makes ordinary repairs, can make no claim for deduction from the rent; but he claims, where the repairs necessary are "substantial and lasting," "such as putting on a new roof," etc., the rule is otherwise. The case above cited shows the contrary, for there the repairs made by the tenant were necessary to render the premises habitable; but, as the tenant there, as well as in this case, rented the place knowing the condition in which it was, and there was no contract on the part of the landlord to repair, the tenant was not entitled to any deduction.

As to the second ground, also, we think the charge is not correctly represented.

On the contrary, the jury were instructed: "If the landlord contracted to repair the roof, and neglected or refused to do so, and from that refusal injury came to the goods of the tenant, why for that, to the extent of that injury, the tenant would have a right to recover against the landlord. That is, to take it off the rent. Then, after explaining to the jury that the injury must be an actual injury, resulting directly from the breach of the landlord's contract, the circuit judge added these words: "I would say, gentlemen of the jury, that a tenant would be in duty bound to do everything they [he] could to prevent injury to his goods, and it would be the duty of the tenant even to go so far as to repair, do the repairs himself, and then charge it up against the landlord; and that is the course that he should pursue, rather than, for a great length of time, to continue and persist in keeping goods in the room where this injury is occurring, and where he knows it is occurring, and submitting in that way to injury which he knows is happening to his goods, and putting goods where they will be injured in that way. I say, rather than do that, it would be a tenant's duty, and he would have the right, to make the repairs, and charge the expense of the repairs to the landlord; and that is what he will be required to do, unless the landlord absolutely prohibited him from making the repairs. Then, if the landlord did prohibit him,- would not allow him to do it,why, then, for the injury that would continue to occur to the goods, the landlord, if it were a breach of contract on his part, would have to pay for it." In this we think there was no error, especially when taken in connection with the whole charge; for the manifest meaning was that, while the landlord would be liable for all damages which the tenant might sustain by reason of the breach of his contract to repair, yet the tenant should not stand quietly by, and voluntarily allow his property to remain exposed to injury, thus contributing to his own loss, but, "rather than" do this, he ought to make the repairs himself, and charge the same to the landlord, unless prohibited from doing so by the landlord.

The only remaining ground is the third, in the order in which we have stated them, in which error is imputed to the circuit judge in refusing the motion for a new trial, at least unless the plaintff would remit the amount received by him from Alfred Tolleson as rent during the year 1884. This ground presents nothing but a question of fact, with which we have nothing to do. The jury had been explicitly instructed that if the plaintiff had received any rent from Tolleson during that year the defendant would be entitled to a deduction of the amount so received. Whether the plaintiff had received anything, and, if so, what amount, from Tolleson, for rent of the premises during any part of the year 1884, was a question of fact, which was left to the jury, under proper instructions as to the law; and we certainly cannot say that there was any error of law in refusing a new trial on that account. Indeed, the whole case, as it seems to us,

turned mainly on questions of fact; and, those questions having been solved by the tribunal specially designated for that purpose, there is no ground for this appeal. The judgment of this court is that the judgment of the circuit court be affirmed.

SIMPSON, C. J., and MCGOWAN, J., concur.

KETCHIN V. LANDECKER et al. (Supreme Court of South Carolina. Feb. 26, 1890.) ATTACHMENT-FILING AFFIDAVITS.

1. Code S. C. § 250, provides that it shall be the duty of plaintiff procuring an attachment, "within ten days after the issuing thereof, to cause the affidavits on which the same was granted to be filed in the office of the clerk of the court of common pleas or with the trial justice in which or before whom the case is to be tried." Rule 69 of the circuit court provides that, if this is not done, defendant may move to vacate the attachment, characterizing it as a penalty. Held, that the failure to file such affidavits within 10 days after the warrant was issued entitled defendant to an order vacating the attachment, and the filing of copies of the affidavits was not sufficient.

2. An affidavit to obtain a warrant of attachment which states that the claim of plaintiff is about $325, "according to his best information and belief," is not a sufficient compliance with Code Civil Proc. S. C. § 250, which provides that the affidavit shall specify "the amount of the claim, and the grounds thereof."

Appeal from common pleas circuit court of York county; PRESSLEY, Judge.

Action by Thomas H. Ketchin against Philip Landecker and others to recover for rent of a store-house. A warrant of attachment was sued out by plaintiff, and from the refusal of a motion to vacate the same defendants appealed.

Ragsdale & Ragsdale, for appellants. McDonald & Douglass, for respondent.

MCIVER, J. The defendants made a motion in the circuit court to vacate an attachment sued out by plaintiff in this case, upon three grounds: (1) Because the affidavits upon which the warrant of attachment was obtained did not state specifically the amount claimed to be due by the defendants to the plaintiff; (2) because the affidavits upon which the warrant of attachment was obtained were not filed in the clerk's office within 10 days after the warrant was issued; (3) because the warrant was improvidently issued. The circuit judge, without adverting to the third ground, or, so far as appears, considering it at all, held: (1) That the service of copies of the affidavits, upon which the attachments were obtained, on the defendants was a sufficient compliance with the spirit of the law requiring the affidavits to be filed within 10 days; (2) that the statement of the amount due is sufficiently set forth in the affidavit,-and he dismissed the motion. Defendants appeal, imputing error in each of these rulings, and also in not holding that the attachment was improvidently granted.

It appears that the warrant of attachment was issued on the 14th of October, 1889, and on the same day levied on defendants' stock of goods; and it is stated in the case that copies of the affidavits upon which the warrant was granted were served on

defendants, though it is not stated when they were so served,-whether before or after the expiration of the 10 days. But the copies served differed from the original in two particulars, at least one of which was material; for, while in the original the statement is "that the said defendants are now due to deponent the sum of about three hundred and twenty-four dollars as rent for the said store-house, no part of which has been paid," in the copies it is "that the said defendants are now due to the deponent the sum of about three hundred and twenty-five dollars, according to his best information and belief, as rent for the said store-house, no part of which has been paid." It is very probable that the difference in the amount-$324 in the original, and $325 in the copies-may arise from a misprint, as that difference was not alluded to in the argument; but we have stated it precisely as it appears in the case. It also appears that neither the original nor copies were filed until the 28th of October, 1889,-only two days before the motion was heard; no doubt, therefore, after the notice of the motion was served. But, owing to that singular disregard of the importance of dating their papers, to which the attention of the bar has so often been called, that fact does not distinctly appear, and will not, therefore, be allowed any weight in reaching the conclusion to which we have arrived.

We propose first to consider the question whether the failure to file the affidavits upon which the warrant of attachment was obtained, in the clerk's office, within 10 days after the warrant was issued, entitled defendants to an order vacating the attachment. Section 250 expressly requires this to be done, and the sixty-ninth rule of the circuit court provides that if this is not done the defendant may move to vacate the attachment, characterizing it as a "penalty." In view of this positive requirement of the Code, followed up by the rule of court adopted, for the purpose of carrying it into effect, by the convention of judges, who are required by section 450 of the Code to adopt such rules, "not inconsistent with this Code of Procedure, as may be necessary to carry it fully into effect," we do not see by what authority a single judge, or even this court, could undertake to dispense with such positive requirements. As has been said in several cases, both before and since the adoption of the Code, the remedy of attachment is a summary proceeding whereby a person may be dispossessed of his property, and deprived of that dominion and control over it which is incident to ownership, before the justice of the claim upon which the proceeding is founded has been adjudicated; and hence the rule is well settled that he who seeks to avail himself of such a remedy must be careful to comply strictly with all the conditions upon which it is allowed. Myers v. Lewis, 1 McMul. 54; Phosphate Co. v. Rosenberg, 9 S. E. Rep. 969; Bank v. Stelling, Id. 1028; besides many other cases. It is urged, however, that the service of copies of the affidavits upon the defendants was a sufficient compliance with the requirements of the law, as the only object of the require