true as a general rule that wards of the Court should not be carried beyond the jurisdiction without consent of the Gourt. But here the consent of the Court was necessarily implied, because the Court knew that Mrs. Sherman resided without the jurisdiction when the custody was awarded to her. The question as to whether she should not have been required to give bond to return the child to the jurisdiction of the Court, on proper occasion and demand, does not arise, because it does not appear that the Court was asked to require such a bond.

No constitutional right of the child was violated. Certainly he was not banished from the State, as contended by appellant. Certainly, a parent has the right to put his child

in school outside of the State, and no one would say 3,4 that he had banished him or denied him any constitutional right in so doing. The power of the Court is paramount to that of the parent. The power of the Court to do what is best for the child includes the power to send him or permit him to be taken beyond the State. To deny that power is to deny the power of the Court to do what is best for the child. It may be better in most cases to require a bond for the return of the child, on proper occasion and demand, as was done in Ex parte Martin. But that must be left to the discretion of the Court. To make the requirement absolute might prevent the Court's doing that which is best for the child, for the chosen custodian, being a stranger here, or having no property, might be unable to give a bond. Besides, in this case, the child was only temporarily within the jurisdiction.

Nor was any constitutional right of petitioner denied by the order. His right of custody and property in the services of the child is inferior to the power of the Court to do that which is best for him.

Judgment affirmed.

Syllabus

[115 S. C.

THE CHIEF JUSTICE and MR. JUSTICE GAGE did not participate on account of illness.

10569

HUGHES v. BLAKELEY.

(105 S. E. 737.)

SET-OFF AND COUNTERCLAIM-DAMAGE TO FARM PROPER COUNTERCLAIM IN ACTION ON CROPPER'S CONTRACT.-In laborer's action against farm owner for an accounting and for amount due under share cropper's contract, owner's counterclaim for damages sustained by reason of laborer destroying well and damaging buildings on the farm while in possession under the contract held proper.

Before SEASE, J., Laurens, April term, 1920. Reversed.

Action by Columbus Hughes against H. L. Blakeley.

This is an action on a share cropper's contract, whereby plaintiff agreed to perform labor on defendant's farm for a specified period in consideration for a share of crops grown on such farm and gathered by plaintiff. Plaintiff alleged that defendant breached the contract and prayed for an accounting. Defendant denied such breach, alleged that plaintiff had destroyed a well and damaged buildings on the farm while in possession thereof under the contract, and interposed a counterclaim for damages sustained.

From order striking out a portion of the counterclaim, the defendant appeals.

Messrs. Simpson, Cooper & Babb, for appellant, cite: Misconduct of servant will justify discharge: 26 Cyc. 990-2; Ann. Cas. 1916a, 1022. Motive of master immaterial if

legal ground for discharge exists: 26 Cyc. 995; 140 Am. St. Rep. 1052; 120 Am. St. Rep. 891. Servant liable to master for negligence occasioned by negligence or misconduct: 26 Cyc. 1023: Employer sued for services may set off damages arising from misconduct of servant: 26 Cyc. 1054; 43 S. C. 63. Misconduct that will warrant discharge: 20 A. & E Enc. Law (2d Ed.) 27; 204 Fed. 537.

Mr. Phil. D. Huff, for respondent, cites: Destruction of well and buildings was a tort and he must allege in his answer facts showing that tort is of such a nature that he is entitled to waive it and sue in assumpsit: 19 Enc. P. & P 762. Did not grow out of the same transaction: 20 N. Y. 281, 285; Pom. Rem. & Rem. Rts. (2d Ed.) 809-10; 72 Or. 207; 115 N. Y. Supp. 121; 33 Barb. 320-321.

Mr. O.L. Long, for respondent, cites: Counterclaim: Code Proc. 1912, sec. 200. Examples: 25 S. C. 506; Pom. Rem & Rem. Rts., sec. 775; L. R. A. 1916c, 500, 509.

January 31, 1921.

The opinion of the Court was delivered by MR. CHIEF JUSTICE GARY.

In this appeal the only exception is as follows:

"Because his Honor, the presiding Judge, erred, it is respectfully submitted, in striking out of defendant's alleged counterclaim the words 'and left the premises of defendant after destroying a well thereon and damaging the buildings, the error being that defendant was entitled to the benefit of said allegation as a defense and counterclaim to plaintiff's cause of action, which was one for an accounting on a settlement between landlord and laborer, and the destruction of

Syllabus

[115 S. C. the building and well constituted elements of damage properly deductible from the amount, if any due, by the defendant to the plaintiff, and constituted a breach of the contract between the plaintiff and the defendant by the plaintiff."

It is only necessary to cite the case of Haygood v. Boney, 43 S. C. 63, 20 S. E. 803, to show that the ruling was errone

ous.

Reversed.

MR. JUSTICE GAGE did not participate.

10570

CABE, ADMX., v. LIGON ET AL.

(105 S. E. 739.)

1. ACTION-COMPLAINT HELD ONE IN TORT AND NOT IN CONTRACTAllegations of negligence, wilfulness, wantonness, and recklessness in an action for personal injury and death of plaintiff's intestate are appropriate to an action ex delicto, and allegations as to a contract between the intestate and one of defendants merely preliminary to the action for tort do not make it an action for breach of contract and subject to an objection as not showing contract relations between intestate and one of defendants.

2. EXPLOSIVES-PARTIES OWING THE SAME DUTY MAY BE JOINTLY LIABLE, -In an action for the death of plaintiff's intestate against one furnishing oil and the oil company from which such one purchased, complaint held not subject to demurrer for failure to show concerted action, collusion, or conspiracy to establish joint liability.

3. EXPLOSIVES -COMPLAINT FOR DEATH WHILE KINDLING FIRE WITH KEROSENE HELD NOT DEMURRABLE.-Whether the use of kerosene oil in kindling a fire constitutes negligence as a matter of law depends upon the facts of the particular case, and a complaint for death from explosion under such circumstances of oil supplied by defendants is not demurrable where it does not show intestate guilty of contributory negligence proximately causing the injury.

4. PLEADING-DEMURRER TO COMPLAINT WILL NOT LIE FOR FAILURE TO ALLEGE MATTERS OF DEFENSE.—In an action for damages for the death of plaintiff's intestate alleged to have been caused by defective oil sold by defendants, a demurrer to the complaint as failing to allege that defendants did not comply with acts of 1913 regulating the test and sale of oils is not well taken; such matter being available only as a defense.

Before MEMMINGER, J., Anderson, April term, 1920. Appeal dismissed.

Action by Mrs. A. A. Cabe, as Admx. of Marinda Bradley, deceased, against R. S. Ligon et al., partners as Ligon & Ledbetter, and the Petroleum Oil Co. From order overruling demurrer to the complaint, the defendants appeal.

Messrs. John K. Hood and Bonham & Allen, for appellants, cite: Action was one ex contractu: 108 S. C. 72; 21 Enc. P. & P. 659; Ib. 650; Bliss Code Pl., sec. 153; 78 S. C. 163. Act makes distinction between illuminating and heating oils: 28 Stats. 204. No tort at hands of Petroleum Oil Co.: 70 S. C. 117. To do a thing that is obviously dangerous is negligence: 94 S. C. 258; 56 S. C. 94; 94 S. C. 143; 110 S. C. 331; 111 S. C. 387. Contributory negligence would bar recovery: 73 S. C. 257; 111 S. C. 420.

Messrs. Dickson & Miller and A. H. Dagnall, for respondent, cite: Purchaser of article has right of action against original vendee: 57 Am. Dec. 455 (N. Y.). Who, as a seller of a dangerous article, is liable for damages to any one who bought it, without notice of danger: 92 Am. Dec. 768; 104 Mass. 64; 212 U. S. 159; 53 L. Ed. 453; 164 N. W. 668; 24 L. R. A. 679; 39 L. R. A. 607; 15 L. R. A. 818; Ib. 821; 31 L. R. A. 220; 22 Ann. Cas. 625; 110 N. W. 20; 264 Fed. 829; 222 S. W. 5. As to joint tort: 38 Cyc. 483. Where there is breach of common duty there is a joint and several liability: 85 Pac. 230; 6 R. C. L. 765; 88 C. C. A.