head or manager." The number of persons thus living together is not at all important, except that there must be more than one, as it is quite certain that two persons may constitute a family; e. g., husband and wife, father and child.

It is also well settled that it is not necessary that the relation of husband and wife, nor that of parent and child, should exist, in order to constitute a family: Bradley v. Rodelsperger, 3 S. C. 226; Garaty v. Du Bose, 5 S. C. 493; Moore v. Parker, 13 S. C. 486; Rollings v. Evans, 23 S. C. 316. But where these relations are absent, we have no case in this state, so far as we are informed, which decides distinctly what other relations. existing between persons living together will be sufficient to constitute a family; but as was said by Simpson, C. J., in Rollings v. Evans, 23 S. C. 316, the term "family" is not to be taken in a restricted sense, but "in its ordinary sense, which includes persons living in one house, and under one head or manager"; and as was said by Moses, C. J., in Garaty v. Du Bose, 5 S. C. 493, "The exemption was intended, not alone as the benefit to the head of the family, but to those whose relations to the head demand, on the one hand, support and protection, and on the other, require a contribution, by the aid of their labor, to the maintenance and conduct of the general establishment to which they belong. . . . It would not follow that although the head of a family might not be a parent, the one substituted as the head would lose the favor of the provision; for it would extend to one having under his roof those so connected with him by ties of residence and association as to become part and parcel of his household, changing their domicile with him, and having no residence but that which they enjoy under his favor."

We do not think that the former chief justice, in using the words "his roof" meant to imply, as is urged by counsel for respondent, that one of the conditions necessary was, that the person claiming to be the head of a family should be the owner of the house in which the collective body of persons alleged to constitute the family resided; for as matter of fact it is well known that many person who are undisputed heads of families reside in houses which they do not own, but which are owned by their wives. Nor do we think that it is necessary that there should be any legal obligation on the part of one claiming to be the head of a family to support the members thereof; but a moral duty, arising from ties of blood, or, possibly, other similar relations, will be sufficient. As is said

in 7 American and English Encyclopædia of Law, page 804, note 2, "the test of a legal duty has been rarely applied, and, unquestionably, a moral duty to support the members of a family is sufficient to constitute one its head"; citing Thompson on Homesteads, sec. 45. Accordingly, we find that it has been held in Arnold v. Waltz, 53 Iowa, 706, 36 Am. Rep. 248, that an unmarried woman keeping house, and there bringing up two children of her deceased sister, is the head of a family, though she has taken no steps to adopt said children, under the statute of that state; in Wade v. Jones, 20 Mo. 75, 61 Am. Dec. 584, that a brother living with his widowed sister and her four small children, and providing for them, is the head of a family; in Bailey v. Cumings, 16 Nat. Bank. Reg. 382, that a bachelor who supports a widowed sister, who keeps house for him, may be the head of a family.

We are inclined to agree with what is said by Anderson, J., in Calhoun v. Williams, 32 Gratt. 18, 34 Am. Rep. 759: "The whole theory and policy of the homestead (law) is founded upon the principle that there is a natural and moral obligation on the head of a family to provide for the support of his wife and children, and other persons dependent on him, towards whom he stands almost in loco parentis, which is, if not paramount, equal to his obligation to pay his debts. . . . . The family may consist of a wife and children, or of other persons who may stand in a state of dependence in the family relation; or it may consist of persons standing in either of these relations, whether the father or mother, or a brother or a sister, or other relation, is the head; but they must be persons who are dependent, in some measure, on the head for support, and who have an interest in his holding his property, and would be prejudiced by its seizure and sale under execution or other process, and who would be benefited by its exemption."

Testing this case by these principles, we think it clear that the defendant must be regarded as the head of a family, and as such, entitled to the exemption claimed. The undisputed testimony of the defendant is: "My sister and myself live together as one family; have so lived for eight years; she is sickly; she has nothing now but the house and lot; she has no other close relatives except myself; I support my sister, and run the establishment; have one servant hired; my sister is dependent upon me for a support, and I support her as a part of my family." Another witness says: "Drummond and his sister live together; he 'supports her."" It seems to us clear

that this testimony is quite sufficient to show that these two persons, bearing the close relation of brother and sister, live together as one family; that she is dependent upon him for a support, which he provides for, and that he, as the head of the household, manages and controls, hires the necessary servants, and provides for the table, etc., she, doubtless, keeping house for him, though that fact is not explicitly stated. It is true that the sister owns the house in which they live; but this manifestly would not afford this invalid female the barest support; for the testimony is, that it would not rent for more than twenty-five dollars a year, and she is therefore clearly dependent upon her brother for the means of living.

The only other inquiry is, whether there was error in holding that a homestead exemption is not allowable in partnership property. We see nothing in the constitution or statutes which limits this exemption to personal property held in any particular manner. On the contrary, the language of the constitution, since the amendment of 1880, is very general in its character, and must be regarded as embracing any species of personal property, whether held in severalty or in common, or in any other manner. This is in accordance with the principles decided in Nance v. Hill, 26 S. C. 227, and Mellichamp v. Mellichamp, 28 S. C. 125, where the right to a homestead in property held in common was recognized. It is true that there may be, as in the cases cited, a practical difficulty in assigning or setting apart to a claimant of such an exemption in partnership property, the particular property exempt; but that difficulty does not present itself in this case.

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

HOMESTEAD - HEAD OF FAMILY. - As to who is the head of a family, see extended note to Wade v. Jones, 61 Am. Dec. 586–593.

EXEMPTION-PARTNERSHIP PROPERTY. - Partnership property is exempt from execution, just as individual property is exempt: St. Louis etc. Foundry v. International etc. Pub. Co., 74 Tex. 651; 15 Am. St. Rep. 870, and note. In the case of Ex parte Karish, 32 S. C. 437, post, p. 865, the rule is laid down that a partner is entitled to a homestead exemption out of the partnership property, when all the partnership debts are satisfied.

DONAHUE V. ENTERPRISE RAILROAD COMPANY.

[32 SOUTH CAROLINA, 299.]

MASTER AND Servant — Servant's Knowledge of DangerOUS AGENCY. — Ignorance on the part of a servant of the dangerous character of the agency which he is called upon to use is no part of his cause of action for an injury sustained in the use of such agency. Hence, in an action by a street-car driver to recover for an injury from a yicious horse furnished for his use by the company, he need not allege his knowledge or lack of knowledge of the viciousness of the animal.

MASTER AND SERVANT-SERVANT'S DUTY TO KNOW OF Dangerous AGENCY. — A servant suing to recover for personal injury need neither allege nor prove his ignorance or lack of means of knowing that the agency which he was called upon to use was dangerous and unsafe, as it is the duty of the master to know this. That the servant knew or ought to have known the dangerous character of the agency involves his contributory negli gence, and is an affirmative defense, imposing the burden of proof on the master.

Barker, Gilliland, and Fitzsimons, for the appellant.

Mitchell and Smith, and W. H. Parker, Jr., for the respond

ent.

McIVER, J. As the question presented by this appeal arises under a demurrer upon the ground that the complaint does not state facts sufficient to constitute a cause of action, it is necessary to set forth so much of the complaint as is pertinent to this inquiry. The first, second, third, fifth, and sixth paragraphs need not be considered, as the allegations therein contained do not relate to the question which we are called upon to consider. The fourth paragraph is as follows: "That at the time of his death, the said John H. Donahue was employed by the defendant as a driver of one of their street-cars on the line of their railroad, in the city of Charleston; that defendant, at said time, to wit, May 24, 1887, carelessly, negligently, and unlawfully furnished to said John H. Donahue, to be driven by him, and ordered and directed him to drive, in one of their street-cars as aforesaid, a vicious, unruly, and unmanageable horse, wholly unfit for the purposes of a street-railroad carhorse, and so known to be to said defendant; and while in performance of his duties as aforesaid, driving said horse in a street-car, under the orders and directions of the defendant, the said John H. Donahue was, then and there, in the city of Charleston, on the 24th of May, 1887, by said vicious, unruly, and unmanageable horse, kicked, struck, and injured, so that he then and there died from the effects of such kicking, striking, and injuring."

The defect in the complaint relied upon to 8 stain the demurrer was, that it contained no allegation that the intestate did not know, or did not have the means of knowing, equally with the defendant, that the horse was a vicious, unruly, and unmanageable animal. The circuit judge overruled the demurrer, and the defendant appeals, upon the several grounds set out in the record, which, although stated in various forms, substantially make the single question whether the omission to allege that the intestate did not know, or did not have the means of knowing, equally with defendant, the dangerous character of the animal, is fatal to the complaint on demurrer.

There can be no doubt that it is the duty of the master to furnish his servant with safe and suitable appliances to do the work for which he is engaged, and that the neglect of the master to perform this duty renders him liable to the servant for any injury sust ined by reason of such neglect: Gunter v. Graniteville Mfg. Co., 18 S. C. 262; 44 Am. Rep. 573. It would seem, therefore, that when a servant who brings his action against his master to recover damages for injuries sustained by him, and states in his complaint that such injuries have resulted from the negligence of the master in failing to supply him with safe and suitable appliances to perform the work which he was engaged to do, he has stated a good cause of action; for he has alleged that he has been injured, and that the injury resulted from the default of the master in the performance of his acknowledged duty, and it is difficult to conceive what more could be required. As a test, suppose this case had gone to the jury, and the plaintiff had proved all of the allegations of her complaint, and nothing more had appeared; we do not see how it could be doubted that she would have been entitled to recover.

But it is urged that while the rule as above stated is well settled, yet it is equally well settled that where a servant knows, or ought to know, the unfit and dangerous character of the agency or appliances necessary for him to use in the performance of the work for which he is engaged, and, nevertheless, continues to use such agency or appliance, he voluntarily assumes the risks incident to such use, and if injury results, he cannot recover; and hence it is argued that in an action like the one now under consideration it is necessary for him to allege want of knowledge or means of knowledge. While the rule as thus stated may be admitted to be correct, we do not think it by any means follows that the inference