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February 8, 1917.

Opinion of the Court.

[ 106 S. C.

The opinion of the Court was delivered by MR. JUSTICE FRASER.

On the 15th day of June, 1916, the respondent cut off the relator's light and water from his residence and office building, on account of arrears of water rent, for the office building, for the months February, March and April, 1916. During those months the plant was operated by the Carolina Central Electric Company. The relator applied to his Honor, Judge Shipp, for a writ of mandamus to require the restoration of the service. The writ was granted, and from this order this appeal was taken.

There are nine exceptions, but the appellant does not argue them separately, and we will not consider them separately.

In the view this Court takes of this case, there is only one question, to wit: Can the respondent discontinue the service, even if there was a debt due for water, supplied at a previous time, and that supplied by another company?

The case of Benson v. Water Co., 88 S. C., on page 354, 70 S. E., on page 897, answers the question. Quoting from Poole v. Water Co., 81 S. C. 438, 62 S. E. 874, 128 Am. St. Rep. 923, we find:

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'While a public service water company has the right to cut off a consumer's water supply for nonpayment of recent and just bills for water rent,' etc. *** We agree with the Circuit Judge that the water company cannot be allowed to refuse to furnish water under the contract of December 1, 1909, even if there was a debt due for water supplied at a previous time and a different place."

The appellant cites from the franchise as its authority. "Upon the failure or refusal of any consumer to comply with the foregoing provisions, or any reasonable rule or regulation of the said A. N. Walker, his heirs and assigns,

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and upon the failure of any customer to settle any bill when due, service may be discontinued and the amount of deposit returned to such customer after deducting all his bills due."

The service was discontinued here for past-due bills, under a contract made with another concern, and assigned to the appellant.

These companies should have a short and inexpensive method of collecting just bills, but we have been cited to no authority, and we know of none, that allows the short method for the collection of assigned accounts for past-due bills. Mr. Johnson denies that he is due anything for arrears of water rent.

The order is affirmed.

9626

BARRETT & CO. v. STILL ET AL.

(91 S. E. 735.)

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1. REFERENCE SPECIAL MASTER - POWER- STATUTE.-In view of Civ. Code 1912, sec. 1879, authorizing appointment of special master in case of vacancy, and sec. 1380, prescribing the duties of a master, in a proceeding by creditors of the estate of an intestate decedent to declare fraudulent deed executed by decedent to wife, the appointment of a special master clothed him with all the powers of a regular master, and the decree of another Judge, who heard the argument on the report, that the master take further testimony and report amount of dower demandant was entitled to and make a sale, continued the special master in such capacity, and the fact that the sale did not occur at the time nominated in the decree did not deprive the special master of his jurisdiction to continue as such until the conclusion of the case.

2. REFERENCE-DOWER AND HOMESTEAD-FINDINGS-FAILURE TO Object. -In an action by a creditor in behalf of itself and other creditors of the estate of an intestate decedent to set aside as fraudulent a deed executed by deceased to his wife, in which wife claims homestead and dower, where the decree did not direct the method to be used in determining homestead and dower, and the master adopted the usual course giving notice to the parties to select appraisers for that purpose, and plaintiff's attorney represented the creditor's class and selected an appraiser to determine homestead and dower, any other creditor is estopped to object to the action of the master.

29-S.C.-106

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3. REFERENCE-HOMESTEAD-FINDINGS SUFFICIENCY OF EXCEPTIONS.— Exceptions to the homestead appraisement, which do not contain any evidence to establish the claim that the assessments were excessive and wrongful, beyond the bare statement of that fact, will be overruled.

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4. REFERENCE FINDINGS ATTORNEY'S FEES - PREMATURE ESTABLISHMENT.-The action of the master in establishing the fees for plaintiff's attorney in advance of the sale of the property, and the actual bringing into Court of the net funds realized therefrom, was premature, and an exception thereto will be sustained on the ground that such services have not occurred.

Before DEVORE, J., Barnwell, Fall term, 1915. Affirmed.

Action to have a deed declared fraudulent by Barrett & Co. against H. D. Still and others. For judgment on former appeal, see 102 S. C. 19, 86 S. E. 204. Subsequently proceedings were had to allot dower and assign homestead. From the decree with reference to assignment of homestead and allotment of dower, the plaintiff and defendants, F. S. Royster Guano Company and others, appeal

The following is the decree of the Court below:

This matter comes before me on exceptions to proceedings had by the special master, J. Emile Harley, Esq., in re homestead and dower of Marion M. Still, and fees fixed for Mr. R. J. Southall, attorney for the plaintiffs herein.

The matter being on the calendar was, by consent, marked "heard" and was argued before me at my chambers, in Columbia, on December 16th, the attorney for the excepting creditors being Mr. Mitchell, of the firm of Mitchell & Smith; Mr. Nathans, of Nathans & Sinkler, representing the F. S. Royster Guano Company, Read Phosphate Company, and F. W. Wagener & Co., certain defendants; whilst the plaintiff was represented by R. J. Southall, Esq.; and Mr Simms and Mr. Mayfield, representing Mrs. Marion M. Still, the claimant in homestead and demandant in dower.

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The facts are as follows: The regular master for the county being disqualified, by consent, an order at chambers was signed by Judge Rice, on January 12, 1914, appointing J. Emile Harley, Esq., as special master, "to take all testimony in this cause and to report the same to the Court with all convenient speed, and that said master is hereby clothed with authority and powers conferred upon masters," and he was also required to call in creditors to prove their claims before him, etc.

This was done, and the case was argued before Judge Sease on the testimony reported, and, among other things, Judge Sease provided in his decree that the said special master or referee (which terms are convertible) "to take the testimony herein and report to the Court, the amount to which Mrs. Marion M. Still would be entitled for her right of dower in said lands; that he next pay to Mrs. Marion M. Still, H. D. Still, S. H. Still, and L. C. Still $1,000 in full settlement and discharge of the homestead exemption to which they are entitled as the sole heirs at law of the said H. D. Still, deceased."

An appeal was taken to the Supreme Court from Judge Sease's decree, and the same was modified by the Supreme Court in certain particulars, among which was that Mrs. Still was held to be entitled to both homestead and dower in kind, if practicable. Thereafter a reference was appointed by the special master, under the provisions of Judge Sease's order, as modified by the Supreme Court, to ascertain and report a reasonable compensation for R. J. Southall, Esq., plaintiffs' attorney, and also the selection and appointment, under the law, of appraisers to allot dower and homestead to Mrs. Still.

At this reference Messrs. Nathans & Sinkler, Mitchell & Smith, and James Simons, representing F. S. Royster Guanc Company, Read Phosphate Company, and F. W. Wagener & Co., objected on the ground that they had not been sufficiently notified of the same, whereupon the special master

Circuit Decree.

[ 106 S. C. continued the reference, and notified the said attorneys of the continuance, until the 11th of October, 1915. At this reference the said attorneys did not appear, but Mr. Boulware, an attorney at the Barnwell bar, appeared, and on their behalf filed their objection to any action on the part of the special master, alleging that his jurisdiction had ceased with the expiration of the date fixed in the decree of Judge Sease, for making the said sale, and that he would be disqualified from taking any action until a new date had been fixed for the sale, and that the application to assess a fee for Mr. Southall, as plaintiff's attorney, was premature. This objection was overruled, and the special master proceeded with the reference, and testimony was offered as to the services rendered, and for the amount of fee for said. plaintiffs' attorney.

The commissioners, who had been previously nominated and appointed, one on behalf of the plaintiff by plaintiffs' attorney, one by the defendant claimant, Mrs. Still, and the other by the special master, filed their report in homestead and dower, with the special master, together with their allotment and assessment, which in turn was filed with the clerk of Court by the master on the 16th of October, 1915, and notice given to said defendants by the special master. To this exceptions were served by the defendants, F. S. Royster Guano Company, Read Phosphate Company, and F. W. Wagener & Co., upon the special master and upon the attorneys for the various parties, alleging: (1) That there were no provisions in the decree of the Circuit Court or Supreme Court authorizing the special master or referee to appoint appraisers to set aside homestead or dower; (2) that the date for the sale, under Judge Sease's order, had expired, and no new order had been taken for another sales day, and that hence the special master had become functus officio and without authority to appoint appraisers; (3) that no authority was conferred by law on the present master or referee to appoint appraisers to admeasure dower. These excep

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