Our second question grows out of the answers complained of in the fifth and sixth assignments of error. As we have already had occasion to remark, Rummel was employed as a dragdown. He was hurt while in the discharge of the duties of a roller, and the court was asked to say that in attempting that for which he was not employed he voluntarily assumed the risk incident to his unnecessary undertaking. If the facts presented a case such as is thus assumed, it may be that the rule invoked should have been given to the jury; but the learned judge of the court below well said that "the scope of duty within which a servant is entitled to protection is to be defined by what he was employed to perform, and what, with the knowledge and approval of his employer, he did perform, rather than by the verbal designation of his position." If, in the absence of the roller, he was permitted and expected to open the gate in case the billet stuck fast, he was entitled to instruction and protection in the same manner as though he had been employed as a roller. Whether he was permitted and expected to manage the gates in the absence of the roller was a question of fact. If the jury found that he was, then the defendants were not entitled to the instruction asked for in their third point, and the answer complained of was right. On examination of the whole case, we are of opinion that the judgment must be affirmed.

No. 91.

WILLIAMS, J. The judgment in this case is affirmed.

MASTER AND SERVANT-RISKS ASSUMED BY THE SERVANT.-As to what risks are and what risks are not assumed by a servant upon entering upon his service, see Myers v. Hudson etc. Co., 150 Mass. 125; 15 Am. St. Rep. 176, and note; McDonald v. Chicago etc. R'y Co., 41 Minn. 439; 16 Am. St. Rep.

711.

MASTER AND Servant- MACHINERY.

As to the duty incumbent upon the master to furnish safe machinery, see McDonald v. Chicago eta. R'y Co., 41 Minn. 439; 16 Am. St. Rep. 711, and note.

MASTER AND SERVANT - MINOR EMPLOYEES. - As to what risks are taken by minor employees, and the master's duty to instruct such employees, see Rolling Mill Co. v. Corrigan, 46 Ohio St. 283; 15 Am. St. Rep. 596, and cases cited in note.

CASES

IN THE

SUPREME COURT

SOUTH CAROLINA.

STATE V. BARNES.

[82 SOUTH CAROLINA, 14.]

CONDITIONAL PARDON.- A pardon granted a party sentenced to two years' imprisonment after he has served part of his term, on "condition that he shall leave the state within forty-eight hours, never to return,” is not illegal, and upon his return six years after having accepted the benefit of the pardon, he may be recommitted to prison, to serve the remainder of the unexpired term.

M. H. Moore, for the appellant.

Nelson, for the respondent.

McIVER, J. In this case, the appellant, having been convicted of grand larceny, was sentenced to imprisonment at hard labor in the penitentiary for the term of two years. After suffering a portion of the punishment thus imposed, the appellant was pardoned by the governor, "upon condition that he shall leave the state within forty-eight hours, never to return." An affidavit having been submitted to the court of sessions, to the effect that appellant had violated the condition of his pardon, by returning to the state, a rule was issued requiring him to show cause why he should not be remanded to the penitentiary to serve out the balance of the sentence which had been imposed upon him. The appellant appeared, and made return,-1. That he had been pardoned by the governor; 2. That his term of imprisonment under the sentence of the court had expired. The circuit judge adjudged the return insufficient, and ordered that appellant be remanded to the penitentiary to serve out the balance of the sentence originally

imposed upon him. From this adjudication and order, defendant appeals upon two grounds, as follows: "1. That the condition of the pardon granted the defendant by the gov ernor of South Carolina on December 24, 1883, was illegal and void, while the pardon itself remains absolute, and that his honor erred in holding otherwise; 2. That the term of imprisonment to which the defendant was sentenced, in 1883, has expired, and that his honor erred in holding otherwise."

Inasmuch as our constitution, by section 11 of article 3, expressly invests the governor with power to grant pardons after conviction, except in cases of impeachment, "in such manner, on such terms, and under such restrictions as he shall think proper," it will not be necessary to look further for his authority to grant a conditional pardon, though it seems to be well settled that such a pardon could be granted in that country from whence we derive a large part of our legal principles: 1 Chitty's Crim. Law, 773; 1 Bishop's Crim. Law, 6th ed., sec. 914. These authorities show that a pardon may be granted, either upon a precedent or a subsequent condition. If the former, then the pardon does not take effect until the condition has been performed; but if the latter, then the pardon takes effect at once, but becomes void whenever the condition is violated, and the offender may be again brought to the bar, and remanded to suffer his original sentence.

But while this is conceded, it is contended that a pardon granted upon a condition subsequent which is illegal, immoral, or impossible to be performed, becomes an absolute pardon, such a condition being absolutely void; and the contention in this case is, that the condition upon which the pardon here was granted- to leave the state, never to return was illegal, inasmuch as there is no such punishment known to our laws as that of banishment, or transportation for life or a period of years. Inasmuch as we think it quite clear that the condition annexed to the pardon granted in this case was neither illegal, immoral, nor impossible to be performed, we need not consider what would be the effect of annexing such a condition to a pardon. It is not pretended that the condition here in question was either immoral or impossible to be performed; and the fact that our laws do not prescribe banishment from the state, or transportation for life or for a period of years, as the punishment for any offense, cannot have the effect of making the condition imposed in this case illegal. There is no law, so far as we are informed, which forbids the executive

AM. ST. REP., VOL. XVII. - 53

from annexing, as a condition of a pardon granted by him, a provision that the offender shall leave the state and never return; and in the absence of any such law, we do not see how the condition upon which the pardon was granted in this case can be regarded as illegal.

So far from there being any law forbidding the imposition of such a condition as was annexed to the pardon granted in this case, we find that its legality has been frequently recogmized in this state. In State v. Fuller, 1 McCord, 178, the defendant, who had been convicted of a mere misdemeanor, was pardoned upon condition that she would leave the state in the course of two weeks; and upon her failure to comply with the required condition, she was brought up for sentence, and the court held that the pardon upon which she relied was void for want of compliance with the condition upon which it was granted. That is a much stronger case than this, for there the defendant was a married woman, and it was contended that she could not perform the required condition without the consent of her husband. But the court held that the condition was one that was capable of performance, and a failure to perform it rendered the pardon void. In State v. Smith, 1 Bail. 283, 19 Am. Dec. 679, the foregoing case was expressly recognized, and it was there held that the governor may annex to a pardon a condition that the offender shall leave the state and never return; and if any part of the condition is violated, the pardon is forfeited, and execution of the original sentence will be enforced by the court of sessions. In that case, the whole subject is fully and most ably discussed by that eminent judge the late David Johnson. Again, in State v. Addington, 2 Bail. 516, 23 Am. Dec. 150, the same doctrine was held, upon the authority of State v. Smith, 1 Bail. 283, 19 Am. Dec. 679, which was expressly recognized and affirmed. And again, in State v. Chancellor, 1 Strob. 347, 47 Am. Dec. 557, the same rule was laid down. In view of these repeated and direct adjudications in this state, we do not think that the question can any longer be regarded as open for discussion.

As to the second ground of appeal, we think the authorities above cited show that it cannot be sustained. While it is quite true that the term of two years' imprisonment, to which the defendant had been sentenced in 1883, has long since expired, yet it is equally true that the defendant has not yet suffered imprisonment for that length of time; and as the pardon

which he pleads has been adjudged insufficient to relieve him from suffering the whole punishment originally imposed upon him, it follows, necessarily, that he is still liable to be required to complete the term of imprisonment originally imposed, just as if he had escaped during that term. And such is the clear result of the authorities, both English and American.

The judgment of this court is, that the judgment of the circuit court be affirmed.

CRIMINAL LAW-CONDITIONAL PARDONS. - For a discussion of the law relative to conditional pardons and the rights arising thereunder, see note to State v. McIntire, 59 Am. Dec. 576-578. A prisoner pardoned on condition of leaving the state, by returning is remitted to his original sentence: State v. Chancellor, 1 Strob. 347; 47 Am. Dec. 557, and note 559, 560. But in People v. Moore, 62 Mich. 497, the court held otherwise, laying down the rule that a pardoned criminal charged with having violated the conditions of his pardon must be arrested and tried in the same way as are other men charged as violators of the law.

SNELLING V. LAMAR.

[32 SOUTH CAROLINA, 72]

ESTATE IN TRUST - TERMINATION OF-OPERATION OF STATUTE OF USES. — Where an estate is conveyed to one for the use of or in trust for another, and no duty is imposed upon the trustee for the proper performance of which it is necessary that the legal estate should remain in him, it will pass at once to the cestui que trust by operation of the statute of uses. If there is anything remaining for the trustee to do which renders it necessary that he should retain the legal title in order to fully perform the duty imposed by the trust, then the statute will not execute the use, and the legal estate will remain in the trustee. ESTATE IN TRUST - TERMINATION OF- - OPERATION OF STATUTE OF USES

DEED TO DEFEAT CONTINGENT REMAINDERS. - Where an estate is conveyed in trust for the sole use of a married woman during the lives of herself and husband, and if she survives, then for the use of herself and her children then living so long as she remains the widow of such husband, and upon her remarriage or death, to be divided between her surviving children and the issue of such as were dead, the trust is terminated by the death of the husband, and thereupon the statute executes the use in the surviving widow and children, and their joint deed of feoffment with livery of seisin will defeat the contingent remainders, and vest a good title in the grantee.

LIFE ESTATE - ESTATE GIVEN during WIDOWHOOD vests a life estate determinable upon remarriage.

Croft and Chafee, O. C. Jordan, and John R. Cloy, for the appellants.

Henderson Brothers, for the respondents.