The daily phoenix. [volume] (Columbia, S.C.) 1865-1878, 1873-08-21

Hook had never been served with the
Injunction order, appears to be we'll
taken. He 80 alleges in his return to
the rule, and no proof Of service Of the
injunction as to him appears in tha pro.
order of the Circuit Court should b, set
aside.
The fourth exception is not sustained
as it regards the defendant Alexander.
Tie petition charged on information
and belief that the gates connecting the
works Of the plaintiffs with the dis!ri-
buting reservoir were closed by the
order OF defendant Alexander, after the
injunction was granted. The aver.
ments Of the petition were sufficiently
distinct to put the defendant Alexander .
to his answer, whether the gates had
been closed by his order after notice of
the injunction order. In his retusn, he
fails to deny the facts charged in this
respect,. aud, therefore, the charge
stands confessed. The same rule, in
this respect. should be applied to petit
tions and statements of the facts and
grounds upon which relief ia asked in q
special proceeding that is applicable to
formal pleadings; and by Sec. 19l of
the Code, all material allegations of the
complaint not controverted by the an
swer are to be taken as true.
The proposition advanced by the fifth
exception, if to be understood as clear.
ing party from the charge of contempt,
where he has acted under the advice OF
counsel. is unsound. Such fact may
be shown by way of mitigation alone.
The proposition set forth in the sixth
exception, namely, that in this State the
Circuit Court cannot enforce their au.
thority by the imposition of fines, if not
inconsistent with the nature Of the
authority exercised by the courts, is at
all events inconsistent with the provi-
sions OF the statute regulating the prac-
tice OF the Circuit Court. IA Ssat., 136,
Sec. l; Gen. Stat, 497, Sec.
The seventh exception is we'll taken.
There is no authority conferred by the
Code to tax as costs in o special proceed
ing the allowances aa costs in IN action.
1t appears on the record that this was
done. and although the attention of the
Circuit Judge does not appear to have
been called to tue point, Jet, occurring
In final order, we are bound to notice
1t as IN erroneous construction Of the
law governing costs.
The order contained in the concluding
paragraph OF this final order appealed
from, aud which directed the parties to
deliver up certain keys, was not in con-
iormity to the nature of the proceed
ings. No such order was contained in
the original Injunction order. Had it
appeared that subsequent to the service
Of the injunction order the defendants
had possessed themselves Of the keys in
question, IN violation OF that order,
ppF F11r kr}S I.
appropriate. But we must conclude
that at the service of the Injunction the
Keys were i'll the possession of the de-
PENDANTS. It is not the province of a
preliminary iDjunotion to compel the
transfer of property OF any kind from
one party to another. The party asking
for an Injunction is assumed to be in
possession of the property, in respect of
which he demands protection, and all
! the Injunction can require on the part
OF the opposite party is that he should
forbear from interfering with that DOS.
session. lie cannot be required to per
form any act whatever. If the plaintiff
cannot enjoy his rights without COM
lpeliing the defendant to perform some
act, he must wait until he has estat-
lished them by his judgment.
1t Is ordered and adjudgel thur S.
much of the final order appealed from
as adjudges the defendant, S. Hook,
guilty OF contempt, and awards da-
IMAGES and costs against him, be reversed
and set aside. and that the proce edings
as against said defendant be dismissed.
1t is further ordered and adjudged that
so much OF said order as fxes the costs
and expenses Of the proceeding at the
sum OF eighty-seyen dollars and twenty.
five cents. be vacated and set aside; and
that so much of said order as diiects
"tnat the said keys OF the water pipe
gates be delivered to s. a. Pearce, Jr.,
agent and clerk Of the plaintiffs, be va.
cated and set aside, md that the case b C
remanded to the Circuit Court"
LIST OF NEW ADVERTISEMENTS.
9. Ii. Barnwcll- School Notice.
Meeting Richland Lodge.