however, seems to be cited for the benefit of the language used by the former chief justice in the next paragraph, as follows: "The subsequent act of 1877 (16 St. 325) fixes the rate of interest (section 1) at 7 per cent. on contracts from and after its passage. Section 2 of that act, presenting certain consequences to arise from establishing a greater rate of interest than that fixed by the first section, must be read as restricted to cases falling under the first section." It is argued that this language can be used with equal force in reference to the second section of the act of 1882, and the consequences arising under the second section should be restricted to cases falling under the first section. But aside from the fact that the language above quoted from the opinion of WILLARD, C. J., is nothing more than a dictum,—which, however, when properly understood, we are not inclined to dispute,—it is very obvious that it cannot serve to support the view contended for by respondent's counsel. In the case of Bowden v. Winsmith, the question was whether a contract made prior to the passage of the act of 1877 could be brought under the operation of that act. In that case the rate of interest specified in the notes sued upon was not unlawful or usurious at the time the notes were given; and when, in the first section of the act of 1877, such a rate was prohibited, and the rate limited to 7 per cent.; and in the second section it was declared that no person lending money at a greater rate of interest "than is provided for in section 1 of this act" should be allowed to recover anything more than the principal sum lent, without interest or costs,-it was very properly held that such prohibition must be confined "to cases falling under the first section," as otherwise the act would be given a retroactive effect upon a contract, which could not be done under the provisions of the constitution. The language relied upon can only be properly construed as expressing the idea (though perhaps the most appropriate terms for that purpose were not used) that the legislature could not, by any subsequent legislation, add to or vary the terms of a contract previously entered into. Hence when, by the first section of the act, a greater rate of interest than 7 per cent. was prohibited, and the consequences arising from an effort to exact more were declared in the second section, it was quite natural to confine such consequences to cases arising under the first section, for that was the same thing as saying, what the constitution requires, that this change in the law as to the rate of interest could only apply to contracts entered into after such change was made.

Here, however, the first section of the act of 1882 makes no rate of interest usurious which was not so before, but left the law, in that respect, the same as it was when the contract now under consideration was made; the only change being a privilege to charge a greater rate than that previously allowed. Hence, when, in the second section, a penalty was imposed for receiving a greater rate of interest "than is herein provided for," the effect was merely to impose an additional penalty for that which was unlawful at the time the contract was made; which penalty could not, of course, be exacted, except where, as in this case, the unlawful act was done after the passage of the act imposing the additional penalty. There is therefore no necessity here, as in the case of Bowden v. Winsmith, to confine the operation of the second section to cases arising under the first section, for the purpose of avoiding any conflict with that provision of the constitution which forbids the passage of any law impairing the obligation of a contract, or for the purpose of preventing the giving of a retroactive effect to the act of 1882; for here, as we have seen, the act of 1882, as herein construed, does not impair the obligation of any pre-existing contract, nor is it given any retroactive effect whatever.

But in addition to this, while it is entirely true, as is said in Potter, Dwar. St. p. 165, and recognized in Nichols v. Briggs, 18 S. C., at page 482, that, “where an amendment of a statute is made by declaring it shall be amended so as to read in a given way, the amendment has no retroactive force: the

new provision is to be understood as taking effect at the time the amended act would otherwise become the law,"-yet it by no means follows that the original provisions of the statute, unaffected by the amendment inserted, are to be regarded as taking effect only at the date of such amendment. On the contrary, the strong implication from the language used by that distinguished author is just the other way. For when it is said, "The amendment has no retroactive force; the new provision is to be understood as taking effect at the time the amended act would otherwise become the law,"-it is necessarily implied that the original provisions of the act, not affected by the amendment, are to be regarded, so far as the time of their taking effect is concerned, as if no amendment had been inserted. Now, in this case, under the law as it existed at the date of the contract, it was unlawful to charge or receive any greater rate of interest than 7 per cent., and the only charge made by the first section of the act of 1882-the only "new provision" inserted-was the privilege to charge and receive as much as 10 per cent. This "new provision," under the authority above cited, could not take effect until the passage of the amendatory act, but in all other respects the law remained as it was at the date of the contract. It was not then for the first time enacted, nor was it then reenacted, but it was then simply republished as the law which had been in force since its original enactment. Indeed, so far as this case is concerned, the first section of the act of 1882 may be practically regarded as precisely the same as it was at the time of the making of the contract; for the new provision inserted in the old law by the amendment could not take effect until the passage of the amendatory act, which, being subsequent to the date of the contract, could not apply to or in any way affect it.

Again, it is asked: "Suppose the defendant here had brought suit on the note, would the plaintiff here [have] been allowed to file a counter-claim under second section of the act of 1882, and get credit on his note to extent of double the amount of usury charged in the note?" We agree with the counsel when this question is answered in the negative, for the very simple reason that the statute does not impose the penalty sued for in this case for charging usury, but only for receiving usurious interest; hence, until such interest has been received, no such penalty has been incurred, and therefore, in the case supposed, the borrower could neither collect by a separate action, nor be allowed, as a counter-claim to an action to recover the sum actually loaned, the amount of said penalty, because none had been incurred. But if the borrower had paid usurious interest on the note, and after such payment the lender had brought his action to recover the amount of the note, it is clear that the borrower might set up as a counter-claim to such action double the sum of the usurious interest so paid, because the statute so expressly provides. It seems to be supposed that the allowance of such a counter-claim operates in some way to impair the obligation of the contract, which all concede to be good to the extent of $900, inasmuch as it reduces, as it is claimed, the amount or value of such contract to the extent of the penalty allowed. This view is based upon an entire misconception of the true nature and real operation of the counter-claim as allowed by the act of 1882. It is not in the nature of a defense to the plaintiff's claim, in which the validity or amount of such claim is assailed, on account of some defect therein, or some objection thereto, and it does not operate as a reduction of, but as a deduction from, the amount claimed by the plaintiff. On the contrary, it assumes the full validity of the plaintiff's claim, and only serves to set up a distinct and independent claim, the amount of which should be deducted from the claim of the plaintiff. It is like a case in which a plaintiff brings an action on a note given for money borrowed, and the defendant sets up as a counter-claim a note subsequently given to him by the plaintiff for a horse. There the defendant, by his counterclaim, makes no assault on the claim of the plaintiff, and does not seek to invalidate it in any way, but may, on the contrary, fully admit its validity, and

yet, if his counter-claim is established, he may claim that the amount of it shall be deducted from the plaintiff's claim, and that the plaintiff is only entitled to judgment for the balance. So, in this case, if the plaintiff, instead of paying the entire note, principal as well as interest, had only paid the usurious interest, and the defendant had brought his action to recover the sum actually loaned, $900, we see no reason why the plaintiff here could not have set up as a counter-claim a demand for double the sum of usurious interest paid by him, and claim that judgment should be rendered for the difference only; for such a defense would not assail, or in any way impugn, the original contract, admitted to be good and valid for the repayment of the $900, but would be simply a claim that the amount of a liability which Trimmier had subsequently incurred to Hardin should be deducted from Trimmier's confessedly valid claim for $900, and judgment rendered for the balance only.

It seems to us, therefore, that, in any view which may be taken of this case, the plaintiff was entitled to recover under the provisions of the statute; and hence the other question presented, as to whether the plaintiff could not, at common law, recover back the money actually paid, does not properly arise, and need not be considered.

The judgment of this court is that the judgment of the circuit court be reversed, and that the case be remanded to that court for a new trial.

SIMPSON, C. J., and MCGOWAN, J., concur.

NOTE.

CONSTITUTIONAL LAW-OBLIGATION OF CONTRACT. Notwithstanding the constitutional provision that the legislature shall not pass any law depriving a party of any remedy for enforcing a contract which existed when the contract was made, it is competent for the legislature to change the practice of the courts; and any legislation which merely affects the pursuit of remedies for enforcing contracts is not within the constitutional prohibition. Toffey v. Atcheson, (N. J.) 6 Atl. Rep. 885. A statute modifying the form of remedy for enforcing the individual liability of stockholders for debts of the corporation, but not annulling their liability, is constitutional, even as applied to debts contracted by the corporation before its enactment. Fourth Nat. Bank v. Francklyn, 7 Sup. Ct. Rep. 757. Statutes may constitutionally be enacted changing the remedy existing when the contract was made, if they preserve the existing remedies in substance and with integrity, and do not destroy or embarrass the remedies existing when the contract was made, so as substantially to defeat the rights of creditors. County of Kossuth v. Wallace, (Iowa,) 15 N. W. Rep. 305. A statute prohibitory of a suit on a bond until after foreclosure is void as to antecedent obligations. Wilkinson v. Rutherford, (N. J.) 8 Atl. Rep. 507.

Respecting other legislation considered with respect to the constitutional inhibition against impairing the obligation of contracts, see Seibert v. U. S., 7 Sup. Ct. Rep. 1190; Lehigh Water Co. v. Borough of Easton, Id. 916; St. Tammany Water-Works Co. v. New Orleans Water-Works Co., Id. 405; Fisk v. Police Jury of Jefferson, 6 Sup. Ct. Rep. 331, and note; Monongahela Bridge Co. v. Pittsburgh & B. R. Co., (Pa.) 8 Atl. Rep. 233; State v. Jersey City, (N. J.) 8 Atl. Rep. 123; State v. Morris & E. R. Co., (N. J.) 7 Atl. Rep. 826, note; Coast-Line R. Co. v. City of Savannah, 30 Fed. Rep. 646; Willis v. Miller, 29 Fed. Rep. 238; Saginaw Gas-Light Co. v. City of Saginaw, 28 Fed. Rep. 529, and note; Com. v. Maury, (Va.) 1 S. E. Rep. 185; Com. v. Weller, Id. 102; Com. v. Jones, Id. 84, and note; Bockover v. Superintendent, (Mo.) 3 S. W. Rep. 833.

(27 S. C. 137)

STATE ex rel. COLUMBIA BRIDGE Co. v. CITY OF COLUMBIA, and another, as Sheriff.

(Supreme Court of South Carolina. July 8, 1887.)

1. MUNICIPAL CORPORATIONS-BOUNDARIES-COMMISSIONERS UNDER Statute.

Under the South Carolina act of 1786, (4 St. 751,) for the purpose of establishing the town (now city) of Columbia, commissioners were "authorized and required to lay off a tract of land of two miles square, near Friday's Ferry, on the Congaree river." According to the map filed by them in the office of the secretary of state, the northern, southern, and eastern boundaries of the city are laid down as straight lines, two miles in length; but the western boundary, where the Congaree river

runs, is left open. In an action where the question in issue was whether any part of a bridge across the Congaree was within the city, so as to be subject to taxation, held, that it must be presumed that the commissioners fulfilled the duty required of them by the statute, and laid out the western boundary in a straight line, running up and down the Congaree, and that it was not necessary that they should show such line upon the map prepared by them.

2. SAME-BOUNDARY ON STREAM.

Even assuming that the commissioners failed to lay off a tract two miles square, the boundary shown upon the map must be applied in same manner as boundaries on the banks of unnavigable streams in surveys of private lands; and thus applied, the southern and northern lines would be extended to the center of the stream, and the western boundary of the city would follow the filum aquæ, and thus under either application of the plan the bridge would be taxable.

Appeal from circuit court, Richland county.

Allen J. Green, for appellants. Clark & Muller, for respondent.

MCIVER, J. This was an application for a prohibition to restrain the colection of a tax imposed by the authorities of the city of Columbia, upon the bridge across the Congaree, at Columbia, owned by the relator. The circuit judge held that no part of said bridge was within the corporate limits of the city of Columbia, and hence that there was no authority for the imposition of the tax complained of. He therefore granted an order that the writ of prohibition should issue, prohibiting the enforcement of the execution which had been issued and placed in the hands of the sheriff. From this order the city council appeal upon the several grounds set out in the record, which need not be repeated in detail here.

It is conceded that the question presented by this appeal turns solely upon the inquiry, what is the correct location of the western boundary of the city of Columbia? By the act of 1786, (4 St. 751,) for the purpose of establishing a town to "be called and known by the name of Columbia," and removing the seat of government thereto, certain commissioners were "authorized and required to lay off a tract of land of two miles square, near Friday's Ferry, on the Congaree river, including the plain of the hill whereon Thomas and James Taylor, Esquires, now reside, into lots of half an acre each, and the streets shall be of such dimensions, not less than sixty feet wide, as they shall think convenient and necessary, with two principal streets, running through the center of the town, at right angles, of one hundred and fifty feet wide; which said land shall be, and the same is hereby declared to be, vested in the said commissioners, and their lawful successors, for the use of this state." The second section of the act provides for the payment to the proprietors of the land, thus authorized and required to be taken for the establishment of said town, of a generous price for the same, at a valuation to be fixed by the commissioners. The other provisions of the act throw no light upon the question presented, and need not, therefore, be stated. In pursuance of the provisions of this act, the commissioners appointed for the purpose seem to have laid off the land now constituting the city of Columbia, and made a map of the same, which was filed in the office of the secretary of state. According to this map, the northern, southern, and eastern boundaries of the town (now city) of Columbia are laid down as straight lines, two miles in length; but the western boundary, where the Congaree river runs, is left open; and, as we have said, the only controversy is as to the correct location of that boundary

line.

The relator contends that the correct location of the western boundary is to be found by beginning at the point where the northern line reaches the Congaree river, and running thence, down said river, following its various sinuosities, to the point where the southern line strikes said river. The appellants, on the other hand, contend that the western boundary can only be correctly located by running a straight line from the point where the northern line strikes the river to the terminus of the southern line on said river; or, at

least, upon the principle applicable to proprietors of lands on unnavigable streams, the limits of the city must be held to extend to the middle of the river, and that the western boundary must be located by beginning at a point in the center of the stream, immediately opposite the terminus of the northern line, and thence running down the river, following the filum aquæ to a point immediately opposite the terminus of the southern line.

It is conceded that, if either of the locations of the western boundary contended for by appellants be established, a portion at least of the bridge will fall within the city limits, and will therefore be liable to taxation; and hence, in order to sustain the order appealed from, it will be necessary to establish, as the western boundary, the east bank of the river, under which location no part of the bridge would be embraced within the city limits.

It is difficult for us to conceive of any valid reason why the east bank of the river should be established as the western boundary of the city. It certainly is not so declared in the act authorizing and requiring the laying out of the town, and it is not laid down as a boundary on the map filed in the office of the secretary of state. It is true that the river is laid down on the west side of the map, but it is not designated as a boundary, and there certainly is nothing to indicate that the east bank of the river was intended to be the boundary. On the contrary, the western boundary is left entirely open, and, to determine its correct location, we must resort to other considerations. It will be observed that the commissioners are not only authorized, but are required, to do certain things, and upon a well-settled principle, we must assume, in the absence of any evidence to the contrary, that they did what was required of them by the act. Now, what was required of them? The act shows that they were required "to lay off a tract of land of two miles square, near Friday's Ferry, on the Congaree river, including the plain of the hill whereon Thomas and James Taylor, Esquires, now reside." The only discretion with which they were invested was as to the width of all but the two principal streets, and even that was limited, so that none of the streets should be less than 60 feet in width. The requirement that the tract to be laid off should be two miles square, was just as positive and binding as that it should be near Friday's Ferry, or that it should be on the Congaree river, or that it should include the hill on which the Taylors resided. This being their duty, the presumption is that they did it,-that they did lay off a tract two miles square, and this renders it necessary to adopt the location of the western boundary as contended for by the appellants; for, as it is conceded that the other bound aries are correct, the only possible way of making the tract of land conform to the requirement of the act would be by making the western boundary a straight line between the termini of the northern and southern lines. The little evidence that is obtainable after so great a lapse of time, so far from tending to rebut the presumption that the commissioners did what was required of them by the act, rather tends, in our judgment, to support the presumption. It is manifest that all the lines which were capable of being run by a surveyor were so run as to form a square, and inasmuch as the only line remaining to complete the required figure,-a square,-passed through a large stream, and was therefore not capable of being actually run out, it was very natural that the commissioners should do exactly what the map shows they did do,-leave that line open. There was no real necessity that it should be actually run out by the surveyor, and, as the nature of the territory through which it would pass rendered it impracticable to carry the chain over it, the only thing to be done was to leave it open as they did do. The other three lines having been established, the remaining line could be ascertained upon mathematical principles with just as much certainty as if the surveyor's chain had been stretched along it. The testimony of the surveyors, who were examined as witnesses in this case, we do not regard as at all sufficient to rebut the presumption that the commissioners did their duty, or as even tending to