and whereas, under and by virtue of the provisions of law in relation thereto, it is directed and prescribed that, before issuing the warrant, the judge, trial justice, or clerk shall require a written undertaking on the part of the plaintiff, with sufficient surety, to the effect," etc.: "Now, therefore, the condition of the above obligation is such that, if the said defendant recover judgment in the said case, or the attachment be set aside by order of the court, and the said John W. Hampton, Gray B. Hampton, and B. R. Pollard shall pay, or cause to be paid, to the said Matilda Bogan," etc. This bond was duly probated, and the surety, B. R. Pollard, justified, and the bond was approved by the clerk and filed the 19th of January, 1898, and the bond is indorsed, in the handwriting of plaintiffs' attorney, "Hampton Bros., Plaintiffs, vs. Matilda Bogan, Defendant." There can be no doubt that, under the cases of Bank v. Stelling, 31 S. C. 360, 9 S. E. 1028, and Wagener v. Booker, 31 S. C. 375, 9 S. E. 1055, the undertaking, required as a condition precedent to the issuance of a warrant of attachment, must be executed by the plaintiff in person, or by some duly-authorized agent. And in the comparatively recent case of Grollman v. Lipsitz, 43 S. C. 329, 21 S. E. 272, the court has determined how such an undertaking may be executed in a case where the action is brought by a partnership. In that case Mr. Justice Gary, as the organ of the court, after first determining that such an undertaking does not require a seal, at pages 341, 342, 43 S. C., and page 277, 21 S. E., thus lays down the rule as to how such a paper may be executed by a partnership: "There are two ways in which a partnership may bind itself by its signature to a contract not requiring a seal: (1) By simply the name of the partnership, as Waterhouse & Danner; and (2) by the signatures of the individual members composing the partnership, provided it appears in the instrument of writing that the intention is to bind the partnership." In this case it is apparent that all the persons composing the partnership of Hampton Bros. have executed the required undertaking, and it may therefore be regarded as an undertaking on the part of the plaintiffs, especially when it appears from the recitals above copied that such was their purpose and intent, for such recitals evidently show that it was their purpose and intent to execute such an undertaking as is "directed and prescribed" by the statute. Besides, this undertaking was indorsed in the name of the case, "Hampton Bros. vs. Matilda Bogan," and filed with the other papers as a part of the record. The officer who issued the warrant of attachment manifestly regarded it as an undertaking on the part of the plaintiffs; and

as it was executed by all the parties who had a right to act for the partnership, and as it could not properly be signed in the partnership name, the paper being under seal, it seems to us that such officer had a right so to regard it, especially when the recitals in the paper itself showed that such was the intent of those who executed it. The judgment of this court is that the judgment or order of the circuit court be reversed, and that the case be remanded to that court for the determination of the other question presented by the motion to dissolve the attachment, left undetermined by the circuit judge.

(55 S. C. 507)

SMITH et al. v. SMITH. (Supreme Court of South Carolina. July 18, 1899.)

JUDGMENTS-RES JUDICATA.

1. Land sold at sheriff's sale was held by the former owners, and a suit to recover same was brought by the purchasers upon the ground that they had lawful title to the land. Defendants answered to the merits, denied plaintiff's title under sheriff's deed, and set up the deed relied upon by them. The jury rendered a verdict, "We find for the plaintiff the lands in dispute.' No appeal was taken. Held, that the judgment was conclusive in a subsequent action to recover the lands brought by defendant against the privies of the purchasers.

2. Res judicata is a perfect defense when the parties are the same, or their privies, the subject-matter is the same, and the precise point is determined.

Appeal from common pleas circuit court of Pickens county; J. C. Klugh, Judge.

Action by Benjamin Smith and Andrew Smith against R. F. Smith. Judgment for defendant on motion for nonsuit, and plaintiffs appeal. Affirmed.

Morgan & Blassingame, for appellants. J. E. Boggs, for respondent.

POPE, J. When this action came on to be tried before Judge Klugh and a jury, as soon as plaintiffs had finished their testimony, defendant moved for a nonsuit on the ground that the doctrine of res adjudicata was fatal to plaintiffs' case. This motion was granted by the presiding judge, and after entry of judgment thereon the plaintiffs appealed. In the grounds of appeal some very nice questions of law are raised, but we consider that the motion of nonsuit was properly granted, because the action was res adjudicata, and therefore none of those questions can be said to fairly arise upon the record; for, if plaintiffs are estopped by a previous adjudication of their rights, there can be other new question to be considered.

Is the plea of res adjudicata established here? It seems that, under a judgment against one R. N. Smith, a small tract of land, which is that now in controversy, was sold, and purchased by three certain parties. to wit, Hollingsworth, Boggs, and Child; that, the land being in possession of R. N. Smith and the plaintiffs, an action was brought by

said purchasers (Hollingsworth, Boggs, and Child), as plaintiffs, against R. N. Smith, Benjamin Smith, and Andrew Smith, as defendants, for the recovery of said land, upon the ground that said Hollingsworth, Boggs, and Child "have lawful title" to said lands. The defendants answered to the merits, denied plaintiffs' title under sheriff's deed, and set up the deed now relied upon (that of Perrin O'Dell), dated September 2, 1867. The jury rendered this verdict: "We find for the plaintiffs the land in dispute." Judgment was entered on said verdict, and no appeal was taken by any one or more of said defendants. Thereafter the land was sold by Boggs (he having purchased the interest of Child and Hollingsworth therein) to the present defendant, R. F. Smith. Now, Robert N. Smith having died in the year 1896, Benjamin Smith and Andrew Smith bring this suit to recover this land from the privy of Hollingsworth, Child, and Boggs. The doctrine announced by this court in Hart v. Bates, 17 S. C. 40, which has been so repeatedly recognized in cases tried since the case cited, is that res adjudicata is a perfect defense (1) when the parties are the same, or their privies; (2) the subject-matter must be the same; (3) the precise point must be ruled. From the statement we have just made, it is apparent that all three conditions are answered in the case at bar. The appeal must be dismissed. It is the judgment of this court that the judgment of the circuit court be affirmed.

(55 S. C. 541)

OLIVER et al. v. COLUMBIA, N. & L. R. CO. (Supreme Court of South Carolina. July 18,

1899.)

CARRIERS-PASSENGER-INJURIES-NEGLI

GENCE OF CONDUCTOR.

A complaint alleged that plaintiff, a passenger on one of defendant's trains, was, on the arrival of the train at a place not plaintiff's destination, informed that defendant would not run the car in which she was riding any further, and directed to take another car; that plaintiff and others did not do so, for the reason that all the other cars were crowded; that, upon their failure to vacate the car as requested, the conductor peremptorily ordered plaintiff and others to leave the car; that while attempting to pass from the car in which she had been riding to the car in front of it, and while the platform was crowded with people, the car in front was uncoupled and pulled away from the car in which plaintiff had been; that she was thereby thrown between the two cars, and injured; that thereafter said car in which plaintiff had been riding was coupled onto the train, and run with it through to plaintiff's destination; and that the conductor knew, or should have known, that the car was to be run through, and that he was negligent in requiring the passengers to leave the car. Held, the complaint was not demurrable, as not stating a cause of action.

Appeal from common pleas circuit court of Richland county; J. C. Klugh, Judge.

Action by Alice E. Oliver and her husband against the Columbia, Newberry & Laurens Railroad Company. From an order overruling a demurrer to the complaint, defendant appealed. Affirmed.

George Johnstone and Wm. H. Lyles, for appellant. B. L. Abney and Andrew Crawford, for respondents.

POPE, J. This is an action to recover $10,000 damages for alleged negligent acts wantonly committed by the defendant as a common carrier. The only question before this court arises from a demurrer to the complaint on two grounds: First, "because, the action being one for a negligent injury to the plaintiff as a passenger on a train operated by the said defendant company, the complaint shows that the defendant railroad company had safely transported the plaintiff Mrs. Alice E. Oliver to the terminus of its line, and that the defendant had there given her due notice of her arrival at such terminus, and had notified her that she must leave the car wherein she was riding, which she neglected and refused to do, and that, a reasonable time having elapsed for her to do so, her right as a passenger had ceased"; second, "because said complaint does not allege any facts to show that the defendant violated any duty that it owed to the plaintiff Mrs. Alice E. Oliver." After argument of the demurrer, Judge Ernest Gary overruled the same, and from his order, therefore, the defendant appealed to this court on the same grounds urged before Judge Gary. To consider the demurrer, it will be necessary to reproduce the complaint, which is as follows: "The plaintiffs, complaining of the defendant, allege: (1) That on the 10th day of December, 1890, Alice E. Oliver intermarried with her co-plaintiff, P. M. Oliver, and ever since that time she has been, and now is, the wife of her said coplaintiff, P. M. Oliver, and that they reside in the county of Orangeburg, in the state of South Carolina. (2) That the defendant was, at the times hereinafter mentioned, and now is, a corporation created by and under the laws of the state of South Carolina, and has its principal place of business and office in the city of Columbia, in the county of Richland, in the state aforesaid, and as such corporation is, and was at the time hereinafter mentioned, the owner of and operated a certain railroad known as the Columbia, Newberry & Laurens Railroad, between the city of Columbia, in the county of Richland, in the said state, and the town of Clinton, in the county of Laurens, in said state, and was at such times, and now is, a common carrier of passengers thereupon for hire. (3) That on the 26th day of November, 1895, at the office of the defendant, in the city of Columbia, the plaintiff Alice E. Oliver purchased from the defendant a first-class passenger ticket from the city of Columbia to Clinton. and thence, by connecting lines, to Atlanta, Ga., and return, paying to the defendant therefor the price demanded by defendant. That, after the purchase of said ticket, the plaintiff Alice E. Oliver, with her two children, on said 26th day of November, 1895, were received at the said city of Columbia

by the defendant into one of its cars as a passenger to be carried to Atlanta. The train of the said defendant, whereon was the plaintiff Alice E. Oliver and her children, proceeded to Clinton, and a short time before arriving at Clinton the conductor, brakeman, and other employés of the defendant in charge of said train and car passed through the car, and announced to the plaintiff Alice E. Oliver, and other passengers, that the said car was not going any further than Clinton, and was to be thence returned to Columbia, and that she and all other passengers must leave the said car, and go into another, but, on account of some confusion of orders and all the other cars being crowded, the said plaintiff and other passengers did not leave the said car. That, on the arrival of the train at Clinton, the said conductor in charge of said train and car peremptorily required the plaintiff, her children, and other passengers, to leave the said car, and get upon another, although there was then no other car available for them, on account of their crowded condition. That the car being crowded with passengers, the plaintiff Alice E. Oliver, with her children, being unable at that time to obey the said order, and not knowing where to go, she, with most of the passengers, remained upon said train. That immediately thereafter the conductor in charge of said train again came into the said car, and angrily required the said plaintiff, burdened with her two children, to leave said car at once, although he knew, or should have known, that said car was going through to Atlanta, and that she attempted to obey the directions of the said conductor to leave the car, and was endeavoring to cross over onto the platform of the adjoining car, in pursuance of the directions of the conductor to leave the aforesaid car, when, as she was crossing with her children, the two cars parted, and she and her children fell between the same, and she was injured in the manner hereinafter described. That, immediately after falling between the cars, one portion of the said train suddenly, and without warning, backed on the other portion of the cars, which had remained stationary, and was coupled to it; and said plaintiff, being aided and placed in said car which she was attempting to leave under orders of the said conductor, was, along with other passengers which were therein, carried on to Atlanta. Plaintiffs further allege, with reference to said matter, that it was between 2 and 3 o'clock in the morning of November 27, 1895, when the said train arrived at Clinton; that it was very dark, and bitterly cold; that all of the said cars were crowded with passengers, and that the said conductor, although ordering the plaintiff Alice E. Oliver to leave said car with her children, provided no place where she could go, nor any car into which she could get; that the announcement of the conductor that the said car was not going through, but was to be returned, was untrue, and the same

33 S.E-37%

went on from there to Atlanta; that the said conductor and other employés were wholly negligent in their duty in not ascertaining whether said car was, as matter of fact, to be returned to Columbia, and were wantonly and negligently imprudent in their action in requiring said plaintiff and other passengers to leave said car, when there was no necessity whatsoever therefor, and that the persons in charge of said train, in uncoupling or allowing the car on which she was and the other portion of the train to be uncoupled at the same time the plaintiff was crossing, or about to cross, and when the platform was crowded with passengers, urging and pressing against one another, were wantonly and negligently imprudent; that no care, prudence, or attention whatsoever was given to the safety, convenience, or comfort of the said plaintiff and other passengers thereon; that no precautions were taken with reference to the operations of said car, and the life of the plaintiff Alice E. Oliver, when she was lying upon the track after falling between the two platforms, was in imminent danger; that said cars were backed without any signal, and without any regard whatsoever for the lives of said plaintiff and her two children; that she barely escaped death by being pulled from between the two platforms just as soon as the first portion of the train was backed by the engine. The plaintiffs herein further allege that the plaintiff Alice E. Oliver was seriously injured by the fall between the cars, as herein above set forth, said fall causing permanent injuries to her back and hip joint, as well as other bodily injuries, which have shattered her health, and incapacitated her from attending to her ordinary duties, and from which she has suffered, and is still suffering, great mental pain and anguish, from which said injuries she has not, and will not, effectually and entirely recover; that, owing to her delicate condition, she received serious and severe nervous shocks, causing her intense pain and anxiety; that said injuries have caused said plaintiff to incur the expense of large doctor's bills, and bill for medicine, and plaintiff is still incurring expenses for medicine and medical attention by reason thereof; that, by the want of care and the omission to fulfill the duty that the said defendant owed to the plaintiff Alice E. Oliver, as a passenger, and in negligently and carelessly injuring the plaintiff Alice E. Oliver, she has been damaged to the extent of $10,000. Wherefore the plaintiffs demand judgment against the defendant for $10,000, together with the cost of this action."

Primarily, when a demurrer is under consideration, it is necessary to determine whether the facts alleged in the complaint constitute a cause of action. "A cause of action exists, where the legal rights of one party have been invaded by another." Chalmers v. Glenn, 18 S. C. 471. In the case just cited, it is observed: "Now, as to the statement in

the complaint. It is a general rule-in fact, invariable-that, to entitle a plaintiff to recover, he must prove all the facts constituting his case or cause of action. He must prove the facts constituting his right, and its invasion by the defendant. It is another general rule that the plaintiff can offer no testlmony except as to such facts as he has alleged in his complaint. It follows, therefore, that he must allege in his complaint all the facts showing his right, and also those showing its invasion by the defendant, and the facts thus alleged must in law, on their face, on the one side entitle him to the right which he claims, and on the other amount to an invasion by the defendant. If his complaint is defective in either of these particulars, he will not only be denied the privilege of supplementing the facts by testimony, but his complaint will fail on demurrer." (Italics ours.) What, therefore, is the cause of action set up in the complaint at bar? Is it not that the plaintiff, having paid the fare of a passenger over the defendant's railroad, as a passenger on its passenger train, had the right to receive a courteous and complete care by such common carrier, until she was discharged from defendant's train, but that the defendant invaded this right on her part, by rudely and wantonly forcing her from its passenger car, in the town of Clinton, so that she fell between the platforms of a divided train, which divided train was driven together, without warning, so quickly and recklessly that her life was with great difficulty to others than defendant saved, and great and permanent injuries, etc., were dealt to her? Well, if these things are alleged in the complaint, does the demurrer receive any support? We think not. The circuit judge did not err in overruling such demurrer. The defendant must be ready to defend on the merits. It is the judgment of this court that the order overruling the demurrer be sustained, and that the action be remanded to the circuit court for a trial upon the merits.

(97 Va. 341)

HUDSON v. MAX MEADOWS LAND & IM

PROVEMENT CO.

(Supreme Court of Appeals of Virginia. July 11, 1899.)

SPECIFIC PERFORMANCE-PARTIES-CONDITION OF TITLE-REFERENCE.

A bill for specific performance set out an oral contract to exchange lands, and a part performance by both parties, by taking possession of a part of the premises; that complainant was to pay a certain amount in cash; that defendant at the time of making the agreement stated that there was an incumbrance on the tract it was to convey, but that it was able to, and would, pay and discharge the same, and give a clear title; that complainant was informed that payments had been made on account of said incumbrances, and that probably they were paid, and prayed that the contract be specifically enforced, and that defendant be compelled to convey the premises clear of all incumbrances, and that, in case defendant could not remove

said incumbrances, the cash and property complainant was to pay to and deliver to him be applied to their payment. Held, that the bill made out a case for specific performance, as the incumbrancers could be made parties, if necessary, and the incumbrances removed by application of the purchase money, if adequate.

Appeal from circuit court, Wythe county. Bill by J. R. Hudson against the Max Meadows Land & Improvement Company to enforce specific performance. From a decree sustaining a demurrer to the bill, complainant appeals. Reversed.

J. H. Fulton and Blair, Poage & Blair, for appellant. Bolling & Kegley, for appellee.

CARDWELL, J. This is an appeal from a decree of the circuit court of Wythe county dismissing on demurrer the bill of appellant filed against the Max Meadows Land & Improvement Company for the specific execution of an alleged parol agreement for the exchange of real estate.

It is alleged that a contract was made between the complainant and the defendant on the 28th day of April, 1898, whereby the defendant agreed to sell, or give in exchange, to complainant, a tract of land containing 4604 acres, more or less, the metes and bounds of which are fully set out in the bill, and that, in consideration of the tract of land thus fully described, complainant agreed to sell and convey, and the defendant agreed to take in exchange, certain property from complainant, also fully set out and described in the bill, consisting of a sash, door, and blind factory, and equipments, with the lot on which the factory is situated, three small houses, also, on the factory lot, and certain other houses and lots situated at Max Meadows; that the tract of land which the defendant was to convey to the complainant was valued at $26.50 per acre as to a part, and $16 per acre as to the residue, aggregating $10,856.50 for the whole; that the property complainant was to convey to defendant was valued at $6,600, and he was to pay the defendant the balance, $4,256.50, in cash. The bill further alleges that the terms of the contract were clear, well-understood, and definite in their character; that, while the contract was not then reduced to writing, there was such part performance thereof as took it out of the statute in regard to parol agreements, that is to say, that at the time of the contract complainant was put in possession of, and still holds, the timbered portion of the tract of land he was to get from the defendant, which contains about 127 acres, and possession of the residue of the tract was to be given him as fast as the crops thereon could be harvested, and possession of all was to be given him not later than November 1, 1898; that complainant not only took possession of the timbered portion of the land in pursuance of the contract, but cleared much of it, grubbed and improved other portions with fences, etc., with the full knowledge of

the defendant, and as fast as crops were harvested he was given possession of the other; that, at the time the trade was closed, complainant gave the defendant possession of the factory and lot, and turned over to it the keys to the factory, which are now held by it, and that the defendant not only accepted possession of the factory and the houses on that lot, but took most of the belting off the machinery in the factory, and the pulleys, tools, and other equipment from the factory, and used them in other parts of the defendant's works, so that complainant cannot be put in statu quo; that possession of the other buildings of the complainant included in the exchange was given to the defendant, except that complainant was allowed by the defendant to occupy the dwelling house for a short while; and that so fully was the contract consummated that the defendant had the factory and another of the houses turned over by complainant insured for its own benefit, and plats of the land sold or exchanged to complainant were made by the defendant, and a deed for the land to complainant was prepared at the instance of the defendant.

The bill further states that at the time of the sale or exchange it was stated by the officers of the defendant that there were some incumbrances on the tract of land which complainant was to get, but he was also told by the company's general manager (with whom and the president of the company complainant made the contract) that the company was in a condition to give him a clear title, and that he should have a clear title to the land.

It is further alleged that complainant from the date of the contract has been, and is now, ready, willing, and eager to comply on his part with its terms, and has frequently, before the institution of this suit, offered to do so, by proposing to make the necessary deeds to the defendant for the houses and lots which by the contract he was to convey to the defendant; that complainant has been ready and able, and is still, to pay the balance due from him on the land in cash, but, from some cause not known to complainant, the defendant has delayed removing the incumbrances upon the tract of land which it was to convey to the complainant, and to make complainant a clear title to the land, and refuses now to make him a clear title, free from incumbrances, as it expressly agreed to do.

The bill then sets out that complainant is advised that there are two deeds of trust upon the tract of land in question, amounting to about $15,000, but that he is informed by agents of the defendant that payments have been made on the debts secured by these trust deeds, and that probably all had been paid, etc.

Finally the bill stated that complainant formally files and tenders with his bill to the defendant his deeds, with covenants of general warranty, conveying to defendant all the lots sold to it in exchange for the tract of

land he (complainant) was to get from the defendant, etc.

The prayer of the bill is that the contract of exchange made between complainant and defendant be specifically enforced; that the defendant be compelled to make him (complainant) a deed to the land sold him in exchange, clear of all incumbrances; that the property sold by him in exchange to the defendant, or the proceeds of its sale, together with the cash he was to pay, be applied to the removal of the incumbrances, if they are sufficient, but, if the defendant cannot remove the incumbrances, that then the court will protect complainant from loss, and not allow said property and cash to be so applied; that complainant have reserved to him all necessary remedies and redress against the defendant, if by any possibility it should occur that the defendant cannot remove the incumbrances and make complainant a clear title to the tract of land he claims; and that the deeds complainant files with his bill and tenders to the defendant be held in escrow until complainant shall receive a good and valid deed from the defendant.

Upon what ground the demurrer to the bill was sustained, does not appear. It is contended, however, that, because of the incumbrances set out in the bill, it does not make a case which a court of equity can specifically enforce, as the incumbrancers cannot be made parties to this suit, and that the bill shows that the complainant can be compensated in damages for any injury he sustained by reason of the failure of the defendant to comply with the alleged contract.

We are of opinion that upon neither of these grounds should the demurrer have been sustained. By the demurrer all of the allegations of the bill are admitted to be true, and they set out a contract certain and definite in its terms, and the acts in part performance refer to, result from, and are alleged to have been made in pursuance of, the contract, and are such as to show, if sustained by the proof, that neither party can be restored to the position in which he stood before the making of the contract in question.

It is not a fatal objection to a bill of this character that it shows that there are incumbrances outstanding upon the property the complainant claims and asks that the defendant be required to convey to him by a title clear of the incumbrances, and, even if the bill prayed that the incumbrancers be made parties defendant, it should not be dismissed on demurrer.

In Stimson v. Thorn, 25 Grat. 278, the widow and heirs of one of the vendors of the real estate which was the subject of the controversy were brought in and made parties to the bill, although they were not parties to the contract on which the suit was brought, and specific performance was decreed because it appeared at the hearing that the vendor was in a position to convey a good title.

Says Pomeroy, in his work on Contracts