give the assent of the state to the purchase made by the Central, and to enlarge its corporate rights so as to enable it to operate the Waco and N. R. R.; that the act was not designed to affect, and did not affect, the rights of either stockholders or creditors; that as to creditors, it neither took away any assets from their reach, nor placed new assets within their reach; and that by accepting the conditions of the act the Central did not subject itself to the liabilities of the Waco and N. R. R. On this branch of the case we will only add that no question has been before us as to the rights of a judgment creditor of the latter road, and that we are not aware of having said anything which would preclude such a creditor from any remedy he may be entitled to, or embarrass him in seeking that remedy.

II. On the subject of exemplary damages because of alleged malice in the breach of a contract, we adhere to the views expressed in the opinion. The charge of the court submitted to the jury no issue as to whether or not a tort had been committed, or as to the amount of actual damages to the "character, reputation and standing among business men" of plaintiff from any alleged tortious act of defendant, established to their satisfaction, but allowed them to give exemplary damages, if there was a breach of the contract done and made with a fraudulent or malicious intent. The expression in the charge about an act done by the corporation, is indefinite and amounts to nothing. The question presented to us was on this charge. Was it right? Or, was it wrong? We answered that it was wrong, and notwithstanding the authorities referred to by counsel, we are still of that opinion. The cases cited as to the enlarged measure of actual damages, for a fraudulent failure to comply with a contract to convey land, certainly do not authorize exemplary damages. Cases are also cited where exemplary damages have been allowed in suits against carriers for breach of contract; but evidently on the facts, the action might have sounded in tort, for what amounted to a tort was alleged. With due respect for the elementary authors cited, we are unwilling to follow them in this matter. One of them has declared the allowance of exemplary damages to be a "departure from the true principles of the law of damages, and of public policy." Field on Damages, p. 28, note. As we agree with him in this opinion, we are not prepared to go beyond the authorities, and to lead the way in allowing such damages for breaches of contract.

But counsel assert the right to sue in one action for a breach of contract, and for damages for a tort, where both claims grow out of the same transaction, and are so connected that they may conveniently and appropriately be litigated together. Thus qualified, this proposition is believed to be in accordance with the decisions in this state. But we regard the petition of plaintiff, in so far as it attempts to allege a tort and to recover damages there

for in addition to damages for a breach of contract, as substantially seeking a double recovery for the same wrong. The real purport of the petition was to claim damages for breach of contract, including profits lost by the breach, and to claim also exemplary damages because of alleged malice in committing the breach.

III. In regard to the depositions of Brown and Boyce, we adhere to our opinion that they should have been excluded. They were giving their opinion as contractors and builders, of the cost of clearing, track laying and other work, and it was the right of defendant to have them answer interrogatories calculated to show the extent of their experience and knowledge, and the value of their opinions or estimates. The refusal to answer a material question should not be allowed by the officer taking the depositions, and the mere neglect to answer may prove as injurious to the party questioning.

It is not believed that the authorities require the exclusion of depositions in all cases where the witness has failed to answer every question. Much must be left to the discretion of the court. The rule should not be allowed to be presented to obstruct or retard trials, or to exclude depositions because of a manifest casual failure: to answer some unimportant question.

The motion for rehearing is overruled.

GIBBES

v.

GREENVILLE AND COLUMBIA R. R. Co.
STATE, EX. REL. ATTORNEY-GENERAL,

v.

SAME.

(13 Shand. [8. C.] 228. March 24, 1880.)

A mortgage of railroad property was made to one, his heirs and assigns,. as trustee for bondholders. Under proceedings for foreclosure, the mortgagee being dead, another trustee was substituted and decree of foreclosure rendered. Afterward, a petition was filed by a son of the original mortgagee claiming to be his heir-at-law, and praying to be made a party. Petition dismissed.

Doubted whether ordinances of the convention of 1868 had any legal effect upon then existing statutes.

Private rights vesting during the war between the states are protected by the constitution of the United States, and cannot be impaired by an ordinance of the state constitutional convention of 1868.

"An act to promote the consolidation of the Greenville and Columbia. R. R. Co." provided in its 4th section for a waiver of the lien of the

state on the Blue Ridge R. R. property, and in its 5th section, for a like waiver of lien upon the property of the Greenville and Columbia R.R. property, and in its 7th section, for the endorsement by the consolidated companies of the bonds of the two companies consolidating. The two companies not having consolidated, held, that the act never took effect.

Where an act of the general assembly provided that all the property of a railroad company should stand pledged and mortgaged to the state for the payment of certain bonds issued by such company, and guaranteed by the state, such provision constituted a statutory lien for the benefit of the bondholders as well as the state, which no subsequent statute could postpone. Hand v. R. R. Co., (1,) 12 S. C. 314, followed and approved.

Where the state guaranteed the bonds of a company, issued in exchange for outstanding mortgage bonds, under a statute which provided that the state should take and retain possession of the bonds so surrendered in exchange as security to the state, and thereby give the state the lien under the first mortgage until all the bonds now secured by mortgage shall be retired; all of the mortgage bonds not having been surrendered or exchanged, held, that the state could assert the lien of the mortgage bonds so held by her, together with the coupons thereto attached, as of equal rank with the mortgage bonds not exchanged.

A statute authorizing the guarantee by the state of certain bonds of a railroad company to be secured by a statutory lien, was passed in 1861, and the bonds issued and guaranteed under the authority of this act bore the caption "Confederate States of America." In 1866, another act was passed which extended the operation of the act of 1861, and authorized the issue of new bonds in exchange for the C. S. A. bonds, also certificates of indebtedness to pay interest past due on the C. S. A. bonds, and bonds for other indebtedness, all of which were to be in like manner guaranteed. Held, that the C. S. A bonds, not surrendered, were of superior rank to the bonds issued under the act of 1866, but those issued under act of 1866, in exchange for bonds surrendered, could claim a lien only under the latter act, and stood upon the same footing with all other bonds issued under the act of 1866. Hand v. Railroad Company, (5,) 12 S. C. 315 approved.

Under an act of the legislature passed in 1869, certificates of indebtedness were authorized to be issued by a railroad company for funding interest due upon its bonds which were secured by a lien under an act of 1866, and which lien was extended by the later act to cover these certificates of indebtedness. Held, that this was a mere substitution, and not a payment, and that the lien of these certificates was superior to that of a mortgage executed between 1866 and 1869.

BEFORE PRESSLEY, J., Richland, October, 1878.

The facts of the case are fully stated in the Circuit decree, and again in the opinion of the court. The Circuit decree is as follows: The reports of the referee and the acts of assembly furnish the facts of these cases, as follows, to wit:

In January, 1854, the defendant mortgaged all its property to C. M. Furman, trustee, to secure $800,000 of its bonds, payable in 1862, 1863 and 1864. Before they became due, it had incurred $100,000 other debts; and to enable it to provide for these debts and the mortgage bonds, then almost due, the state, by act of 1861, agreed to guarantee $900,000 new bonds of defendant, and further provided that the first mortgage bonds, which should be exchanged for guaranteed bonds, should stand as security to the state, and

thereby give it the lien under the first mortgage until all these bonds should be retired.

By said act the state's guarantee was to be endorsed on $250,000 of the new bonds before any of the old were taken up, and thereafter the disparity was to increase so that only $400,000 of the old bonds would be held by the state, when her guarantee would be on $700,000 of the new bonds.

This proposed guarantee was made during the war, up to $700,000, and the guaranteed bonds then issued were entitled "Confederate States of America."

According to the act, they constituted a mortgage to the state on the whole estate of the defendant for its faithful performance of its contract "and the payment of such obligation.' The defendant was also required, after the three years, to set apart two per cent on the amount of the guaranteed bonds for retiring the same. This was not done, nor did defendant pay, during the war, the interest on either the first mortgage bonds or those guaranteed.

In 1866, the said interest being still unpaid, and the defendant owing $600,000 other debts, besides interest, the state passed an act which authorized its guarantee on $1,500,000 new bonds and. certificates of indebtedness of defendant, which were to be applied as follows, to wit:

$700,000 to be exchanged for that amount of guaranteed bonds, which have been issued during the war, and entitled "Confederate States of America;" $200,000 to be exchanged for that amount of first mortgage bonds then outstanding; $350,000 to the payment. of interest on the guaranteed and first mortgage bonds, and $250,000 to compromising the remaining debts of defendant at one-third thereof. To the whole of the $1,500,000 bonds and certificates. guaranteed under this act, the mortgage of the act of 1861 was equally extended.

The report of the referee shows that holders of $241,000 of first bonds did not exchange them for those authorized by this act; only $200,000 of these should have remained outstanding when the $900,000 guarantee of the state was complete; but of the guaranteed bonds which were executed, $35,000 yet remain unused in the hands of the comptroller-general, and thus the failure to comply with the terms of the act is reduced to $6000 outstanding first. mortgage bonds, which are contested by defendant without sufficient proof.

As to how much of the $700,000 guaranteed under the act of 1861 was exchanged for those authorized by act of 1866, there is no information in the referee's report or the evidence.

The defendant being again unable to pay interest on its guaranteed and first mortgage bonds for the six months ending July 1st, 1868, the state, by act of February, 1869, authorized its guarantee on $50,000 certificates of indebtedness, to be used for funding said.

interest, and to these certificates the statutory lien of 1866 was extended. In May, 1867, the defendant executed to C. D. Melton, trustee, a second mortgage, to secure $1,500,000 bonds and certificates of indebtedness thereafter to be issued, and to bear date as issued.

There is no proof before me as to the date of any of said bonds, but it is quite certain that it was after the act of March, 1871, which, to promote the consolidation of the defendant with the Blue Ridge Rail [road] Company, purported to make all statutory and other liens, except existing mortgage encumbrances, subsequent to the said second mortgage.

The 7th section of this act requires that the bonds to be issued by the defendants under its second mortgage shall be endorsed by the proposed consolidated company, but the consolidation was not made, and consequently such of said bonds as were issued are withont said endorsement.

Upon the facts above stated, I hold:

1. That the statutory liens, under the acts of 1861, 1866 and 1869, were securities for payment of the bonds therein authorized, not mere indemnities to the state, and therefore it had no right to waive them in favor of the second mortgage.

2. That said waivers, if lawful, never took effect, because the endorsement of the second mortgage bonds by the consolidated company was a condition precedent, and not complied with.

3. That the debts due for necessary repairs, materials and labor for operating the road, pending the litigation in these cases, and which produced income, applied to the payment of interest on the guaranteed and first mortgage bonds, are first to be paid out of the property of defendant.

4. After payment of said debts, the first mortgage bonds cutstanding, and those held by the state, with all unpaid interest thereon, are the first lien on said property.

5. That the portion of the state under this mortgage is for its own indemnity, and is, therefore, equitable assets applicable pro rata to all the bonds it has guaranteed under the acts of 1861, 1866

and 1869.

6. That such of the bonds, if any, guaranteed under act of 1861, as were not exchanged under act of 1866, are the next lien on said property.

7. That the exchange of bonds guaranteed under act of 1861 for those of the act of 1866, was in acceptance of all the provisions of the latter act, and all the bonds issued thereunder have equal rights, and rank next to those, if any, under act of 1861, which were not exchanged; and after those of 1866, the bonds issued under act of 1869 rank next.

8. The second mortgage bonds which have been reported as issued, or which may hereafter be shown to have been lawfully