112 [112 S. C. Syllabus. 10302 MOORE v. ARTHUR ET AL. (101 S. E. 640.) VENUE-REFUSAL TO GRANT CHANGE OF VENUE PROPER IN VIEW OF CONVENIENCE OF WITNESSES.-In view of Code Civ. Proc. 1912, sec. 176, Court did not err in refusing to grant a motion to change the venue, although the action should have properly been brought in the county to which defendants desired to have it removed, where the convenience of witnesses was promoted by the refusal to change the venue. Before TOWNSEND, J., Sumter, Spring term, 1919. Affirmed. Action by M. D. Moore against William W. Arthur and others. From an order denying a motion to change the venue, and extending the time within which defendants could plead, both parties appeal. Messrs. Weston & Aycock, for appellants, submit: The action is of a personal nature and the proper county in which to try it is the county of Richland, where defendant resides: Story's Eq. Juris., 114th Ed., sec. 83 (n); 40 Cyc., p. 59; 26 Cranch 148; 40 Cyc., pp. 57-58-63; 11 S. C. 122; 49 S. C. 325; 26 S. C. 77; 61 S. C. 520. Bush v. Aldrich, 110 S. C. 491, is not conclusive of this case: 39 Cyc. 1612. Messrs. Purdy & Bland and D. W. Robinson, for respondent, cite: The trial of this case in Sumter county is imperative, because it falls under subdivision of section 172, Code of Procedure: 107 S. C. 428; 103 S. C. 263. The motion to remove on the ground of convenience of witnesses, and the ends of justice, sec. 176, subsec. 3, of the Code, is discretionary with the trial Judge, and no appeal lies therefrom: 6 S. C. 314; 55 S. C. 389; 54 S. C. 370. The Court had no right on the hearing of the motion, to extend the time for pleading on behalf of the defendants: 102 S. C. 357; Code of Procedure, sec. 443; Circuit Court Rule XIX; 72 S. C. 570-1. The opinion of the Court was delivered by MR. CHIEF JUSTICE GARY. On the 4th day of April, 1919, the defendant's attorneys gave notice of a motion before his Honor, the presiding Judge, for an order changing the place of trial of the above entitled action from the county of Sumter to the county of Richland, on the ground that the convenience of witnesses and the ends of justice would be promoted by said change, for the reason that all the defendants reside in Richland county. His Honor, the presiding Judge, made the following order: "This matter comes on to be heard before me on a motion to change the venue to Richland county, on the ground that the defendants are residents of that county, and for the convenience of witnesses. After hearing argument of counsel pro and con, it is ordered that said motion be, and is hereby, refused. "It is further ordered that the time within which the defendants are required to plead be, and is hereby, extended until the 24th day of April, 1919.” The defendants appealed from said order, on the following exceptions: "(1) For the reason that his Honor refused to grant a change of venue with respect to the entire action from Sumter county to Richland county, the error being that it appeared from the complaint that the causes of action set forth are of a personal or transitory character, and, therefore, properly triable in the county of defendants' residence, to wit, Richland county, as appears in said complaint and affidavits of defendants. "(2) For the reason that his Honor refused to chang the venue from Sumter county to Richland, with respect to so much of plaintiff's alleged cause of action as relates to the accounting which was demanded, respecting the personal 8-S C 113 114 Opinion of the Court. [112 S. C. property mentioned in the complaint; the error being that an action for an accounting is of a personal or transitory character, and is properly triable in the county of defendants' residence, to wit, Richland county, as appears in said complaint and affidavits of defendants." The plaintiff also appealed from said order, on the following exceptions: "(a) Said Court only had authority to pass upon the motion, and did not have authority to extend the time for pleading. "(b) Said Court was without jurisdiction to extend the time for anything, but to file as answer or plea to the merits, and not to extend the time for other motions." The nature of the action is thus stated by the defendants' attorneys: "This is an action to cancel a deed and for other relief, on the ground of fraud. The plaintiff alleges that he conveyed to the defendant, Annie Moore Arthur, his daughter, a life estate in a tract of land situate in Sumter county, and also gave her certain personal property, and assigned to her a certain bond and mortgage. It is alleged that said property was procured from the plaintiff through undue influence and fraud, practiced upon him by his daughter and her codefendant, W. W. Arthur, her husband. The venue was laid in Sumter county for the reason that the land embraced within the deed is in that county, although the defendants reside in Richland county. A motion was duly made to change the venue to the latter county, on the ground of residence, which was refused. An appeal was taken there from, it being contended that the action was of a personal nature, and that the proper county in which to try it is the county of Richland, where defendants reside." It appears from the record that the principal fact upon which the defendants relied was that the convenience of the witnesses required that the case should be tried in Sumter county. Rep.] October Term, 1919. Section 176 of the Code is as follows: "The Court may change the place of trial in the following cases: "1. When the county designated for that purpose in the complaint is not the proper county. "2. When there is reason to believe that an impartial trial cannot be had therein. "3. When the convenience of witnesses and the ends of justice would be promoted by the change." Even if it appeared before the order herein was made, that Richland was the proper county in which the action should have been brought, nevertheless, when his Honor, the Circuit Judge, rendered the conclusion that the convenience of witnesses would be promoted by the refusal of the motion to change the venue, the defendants cannot successfully contend that the case should be tried in Richland county. It is, therefore, unnecessary to determine the question whether Richland would have been the proper county if the convenience of witnesses had not required that the case be tried in Sumter county. The defendants' exceptions are, therefore, overruled. The plaintiff appealed from so much of said order, as extended the time of the defendants for filing their plea. He, however, did not object to the extension of time for filing an answer, in order that the case might be tried speedily upon the merits. When the defendants' attorney stated that he intended. only to answer the complaint, the plaintiff withdrew his exceptions. The order refusing to change the venue is affirmed. [112 S. C. Syllabus. 10313 STATE v. CHARLESTON BRIDGE COMPANY. (101 S. E. 657.) 1. BRIDGES-FAILURE OF OWNER TO KEEP IN PROPER CONDITION CONSTITUTES CRIME.-Under Cr. Code 1912, sec. 618, not only must the proprietor of a bridge keep the bridge in such condition as to answer the ends of its creation, but it should be kept in such condition as to accommodate the growing demands of modern traffic, or surrender its charter, and, failing to do so, is guilty of a criminal offense. 2. CRIMINAL LAW-COMMON LAW IN FORCE ON FAilure to Keep Bridge IN REPAIR. The provision in Cr. Code 1912, sec. 618, that proprietors of turnpike roads "shall be liable to indictment at common law," shows clearly that the common law is applicable to a prosecution of a bridge company under such section for failure to keep its bridge in proper condition. 3. COMMON LAW-IN FORCE IN STATE.-The common law of England is in force in the State, even though the statute adopted in 1712, “All and every part of the common law of England, where the same is not altered by this act or inconsistent with the Constitution, customs and laws of this State, is hereby continued in full force and virtue within this State in the same manner as before the adoption of this act," is not included in the Code of Laws of 1912; the statute being merely declaratory in its nature. 4. BRIDGES SENTENCE FOR FAILURE TO PROPERLY MAINTAIN ERRONEOUS. -In a prosecution of a bridge company under Cr. Code 1912, sec. 618, for failure to keep its bridge in proper condition, a sentence to pay a fine, one-half to go to the informer and the other half to the bridge company, cannot be sustained, where the bridge company itself was owner of bridge, but sentence should be awarded under section 105, conformable to the common usages and practice in the State, since the bridge company was not committing an offense against itself. Before MEMMINGER, J., Charleston, Summer term, 1919. Reversed and remanded for proper sentence. The Charleston Bridge Company was convicted for not keeping its bridge in proper condition, and appeals. The defendant's exceptions, ordered reported, are as follows: |