Volume 23 — South Carolina Reports

<p>1. Where the report of the referee, including the testimony taken with his conclusions of law and fact, and the exceptions taken to the report, are all submitted to the Circuit Judge, it is not in terms the “Case and Exceptions,” required by the code (? 294), but it is substantially a compliance with the requirements of the law.</p> <p>2. Where there is a consent order of reference in a law case of all the issues to be heard and determined by the referee, the Circuit Judge has the power to review the referee’s findings of fact as well as his conclusions of law, and upon such review to affirm, modify, or reverse them. Simpson, O. J., dissenting.</p> <p>3. Where a party is entitled to a trial by jury the cause cannot he referred without his consent; but his consent to a reference involves his consent to all the incidents of a reference, one of which is that the report of the referee, on exceptions taken, may be reviewed and affirmed, modified, or reversed. Simpson, C. J., dissenting.</p> <p>Per Simpson, C. J.—</p> <p>4. Licenses, revocable and irrevocable, considered and defined.</p> <p>5. Where the license is a power coupled with an interest of a permanent character, it is irrevocable; and if the interest be an interest in land, and the contract be by parol only, the Court of Equity will hold the contract binding, where the licensee has incurred trouble and expense in carrying out such contract.</p> <p>6. Thus, where a railroad company, for certain privileges, was permitted by parol to construct upon the plaintiff’s land a dam, a canal, and a water-wheel, for the purpose of keeping its tank supplied with water, the license was irrevocable and might be enforced in equity notwithstanding the statute of frauds.</p> <p>7. And this special contract being valid and therefore of force, the plaintiff, upon the withdrawal by the railroad company of such privileges, could not bring action for the value of the use and occupation of the land, but only for damages for breach of the special contract.</p>

Before Aldrich, J., Lexington, September, 1883. This was an action by David J. Griffith, as administrator of W. Scott Hook, deceased, against the Charlotte, Columbia & Augusta Railroad Company, commenced October 6, 1881. The decision of the Circuit Judge was as follows : This cause was argued before me in Columbia, on exceptions to the report of the referee, Mr. Assmann, the clerk of the court of Lexington.

<p>Before Cothran, J., Marion, April, 1884.</p> <p>The opinion of this court fully states the case.</p>

Before Witherspoon, J., Charleston, November, 1883. The opinion of this court fully states these two cases. The Circuit decree in the cause first stated, B. Feldman & Co. v. The City Council of Charleston, was as follows : This cause came on for trial by the court.

Before Witherspoon, J., Anderson, July, 1883. This was an action commenced January 30, 1883, by Lawrence C. Chamblee in behalf of himself and other taxpayers of certain townships of Anderson County against Milton P. Tribble, treasurer, and Thos.' J. Webb, auditor of said county, to restrain the threatened sale of their property for the non-payment of the taxes or assessments laid upon them to meet the subscriptions made by their townships to the Savannah Valley Railroad…

Before Pressley, J., Darlington, October, 1888. At the hearing of this appeal, honorable W. H. Wallace, judge of the seventh Circuit, sat in the stead of Mr. Justice Mclver, who had been of counsel in the cause. This was an action by William A. Carrigan against Evander Byrd, Lewis S. Byrd, Peter J. Byrd, and Sarah E. Coker, commenced in January, 1876. The cause was heard by Judge Pressley upon the pleadings and upon testimony taken before him at the hearing.

Before Hudson, J., Spartanburg, November, 1883. The facts of this case appear in the opinion of the court. The judge’s charge was as follows : By the pleadings the title to the land is put in issue, and this casts upon the plaintiffs the burden of showing a perfect title in themselves. They must recover upon the strength of their own title, and not upon the weakness of that of their adversaries. A perfect title must be traced to a grant from the State.

<p>Before Fraser, J., Richland, April, 1884.</p> <p>The opinion of this court sufficiently states the case.</p>

Before Fraser, J., Newberry, February, 1884. This was an action by Fannie N. Baxter in her own right and as administratrix of her deceased husband, against the children and creditors of the deceased. The decree of the Circuit Judge was as follows: This case came before me on the report of the master, dated November 14,1883, and exceptions filed by W. J. Duffie and the State of South -Carolina, defendant creditors.

<p>Before Witherspoon, J., Richland, July, 1883.</p> <p>The opinion fully states the case.</p>

Before Hudson, J., Aiken, October, 1884. These were two actions by the plaintiff corporation against W. C. Langley, W. C. Sibley, J. Gr. Held: that the defendants were bound to exercise extraordinary care in the use of the property, and in the guarding thereof. 2. That his honor erred in holding that the sale was not void, but only voidable; whereas, it is submitted that the law is, and his honor should have held, that the sale was void ab initio. 3.

Before Hudson, J., Laurens, September, 1883. In this case the Hon. T. B. Fraser, of the third Circuit, and the Hon. I. D. Witherspoon, of the sixth Circuit, sat in the places of the Chief Justice and Mr. Justice McGowan, who had been of counsel in the court below. It was an action by P. B. Langston, as administrator de bonis non of Robert Pitts, deceased, against the executor of one of the devisees, and agains't the other devisees and legatees of the plaintiff’s testator.

Before Fraser,, J., Spartanburg, May, 1884. In this case the Hon. I. D. Witherspoon, of the sixth Circuit, sat in the place of the Chief Justice, who had been of counsel in the cause. To the full statement of the case, as made by the Circuit Judge, it Avill be necessary to add only that the renunciation of dower on the mortgage to, Fowler was as folloAvs: “State of South Carolina, Spartanburg County.

<p>Before Aldrich, J., Charleston, February, 1885.</p> <p>The opinion fully states the case.</p>

<p>This was an application to the Supreme Court for a writ of mandamus. The opinion fully states the case.</p>

<p>Before Aldrich, J., Charleston, April, 1885.</p> <p>The opinion fully states the case.</p>

Before Kershaw, J., Charleston, March, 1884. The facts of this case are stated in the opinion. The judge’s charge was as follows: I consider the court and the counsel on both sides fortunate in having a jury so well informed on subjects of this kind as I am satisfied this jury is. It lessens the burden of responsibility upon both court and counsel.

Before Pressley, J., Newberry, November, 1884. This was an action of foreclosure brought by S. J. Douthit, master for Greenville County, against David Hipp, and Was commenced in September, 1884. The opinion fully states the case. The Circuit .Judge erred in refusing to make the subsequent encumbrancer a party. 4 S. C., 338; 7 Id., 329; 9 Id., 197 ;• 11 Id., 545; 12 Id., 61; 4 JDeSaus., 330; Bail. Bq., 479; 4 Johns. Oh., 605; Pom. Rem., § 331.

Before Aldrich, J., Berkeley, February, 1885. Edward Evans was indicted for stealing three hogs. The evidence showed that one of the hogs belonged to Toney Jackson, one to his wife, and the third to her father, who put it in the same pen with the other two to be taken care of, and to bé the property of Jackson’s wife, if he (the father) never came for it; and that he had never come for it. Other matters are stated in the opinion.

Before Hudson, J., Greenville, April, 1884. The judgment of the Circuit Court was as follows : After full argument of counsel for the plaintiff and defendants in this case, which by consent was submitted to the court for trial without a jury, I concur with the master in his findings of fact, except, perhaps, modified below, and I arrive at the following conclusions of law governing the case : By the terms of their contract with the plaintiff, the defendants undertook, for…

Before Fraser, J., Charleston, November, 1884. This was .an action by Louisa O’Hear Dickson, daughter of the testatrix, Sarah O’Hear, against her infant daughter, Sarah O’Hear Dickson, and the children, their heirs and representatives, of James O’Hear and John S. O’Hear, and the administratrix of Joseph O’Hear. The action was commenced in June, 1884, for the purposes stated in the opinion of this court. The case was referred to Gr.

Before Wallace, J., Barnwell, November, 1883. This was an action by E. W. Hyrne against J. D. Erwin and C. W. Erwin, partners in the practice of medicine, commenced in December, 1882, to recover $5,000, damages for negligent and unskilful conduct in the setting and treatment of plaintiff’s broken arm.

Before Witherspoon, J., Darlington, October, 1884. This was an action by G. J. McCown against Mary E. King and others, heirs at law of James King, deceased, commenced in May, 1883. The opinion states the case. cited Will. B. Prop., 251; 2 Wash. R. Prop., 270; 18 Am. Rep., 593; 68 III, 594; 4 Burr., 2529; 3 Rich. Fq., 158; 2 DeSaus., 113; 1 McCord Ch., 78; Fearne Rem., 49; 1 Strob. Fq., 346; 1 Ves. cf- B., 456; 2 Fearne Rem., 238; 5 Ind., 283; 3 Barm.

<p>Before Fraser, J., Richland, April, 1884.</p> <p>This was an action by H. D. Cooke and Lester A. Bartlett, copartners under the firm name of H. D. Cooke, Jr., & Co., against Samuel A. Pearce, IV. T. C. Bates, A. P. Butler, and A. D. Goodwyn, directors of “The South Carolina Cotton Gin Improvement Company,” a corporation holding the following charter:</p> <p>“State oe South Carolina.</p> <p>“Know all men, that in accordance with an act entitled ‘An act to provide for granting of certain charters,’ approved the twentieth .day of February, A. D. 1874, that on the seventeenth day of January, A. D. 1882, a majority of the stockholders of the South Carolina Cotton Gin Improvement Company having by petition applied for a charter for the said South Carolina Cotton Gin Improvement Company: Therefore, know all men by these presents, that J. P. Richardson, R. M. Sims, Jno. Bratton, A. P. Butler, J. D. Neel, T. C. Brown, J. A. Sligh, S. A. Pearce, J. N. 'Huffman, A. D. Goodwyn, John Taylor, F. B. Orchard, citizens of the State of South Carolina, together with such other persons as now are, or may hereafter be, associated with them, and their successors, be, and they are hereby made and created, a body politic and corporate, under the name and style of the South Carolina Cotton Gin Improvement Company; and by said name they are hereby made capable in law to carry on and conduct the business of manufacturing, using, and applying, and granting the right to others to use, manufacture, and apply the Briggs’ cotton gin saw cleaner and brush, patented October 28, A. 1). 1879, and the various industries connected therewith, and to exercise all the powers suitable and proper for that purpose, and to hold, purchase, receive, work, sell, mortgage, lease, enjoy, and retain to them, their successors and assigns, lands, tenements, goods, and chattels, of whatsoever kind, as may be deemed by them conducive to the objects and interests of said corporation. The said corporation, b} its corporate name, may sue and be sued, plead and be impleaded,” &c. * * *</p> <p>“In witness whereof, I have hereunto set my hand and affixed the seal of the court at Columbia, this twenty-third day of February, in the year of our Lord one thousand eight'hundred and eighty-two, and in the 106th year of the independence of the United States of America.</p> <p>“E. R. ARTHUR, C. C. P. & G. S.”</p> <p>This charter was duly accepted by the company at a meeting of the stockholders held February 26, 1882.</p> <p>At the trial, defendants moved for leave to amend their answer by inserting an allegation that on two occasions they had made an effort to obtain a stockholders’ meeting, but had failed. The judge refused to allow the amendment, because he deemed such an allegation to be immaterial. Other matters are stated in the opinion.</p> <p>The judge’s charge to the jury was as follows:</p> <p>Many allegations of the complaint are admitted by the answer. It is admitted that the note set forth in the complaint was executed by the company of which these defendants were the directors. And I charge you that possession of the note by the plaintiffs is prima facie evidence of ownership, and that they are the holders thereof for a valuable consideration. In an action on the note by the plaintiffs against the maker, it would be incompetent for the latter, upon the plea of original want or failure of consideration, to inquire into the consideration of the note, without some notice of failure of consideration, of which there is no evidence. Such negotiable paper implies a consideration, and between the maker and endorsee cannot be impeached. And so I charge you that, in the present action, it is equally incompetent for these defendants to inquire into the consideration of the note upon which the action is based. I have therefore excluded all evidence in reference to the consideration of the note. With that you have nothing to do.</p> <p>If the defendants were directors, they had no right to resign, as stated by the witness for defendants, so as to relieve themselves of any liability. And if they resigned at any time short of the completion of the twelve months, they are liable for the non-performance of any of the duties which the law requires of the directors during that period.</p> <p>Now, the defendants are alleged to be liable upon several grounds:</p> <p>1. That a portion of the capital stock of the company, greater in amount than its indebtedness to the plaintiff, was withdrawn and divided among the stockholders of the company with the consent of the defendants. Now, I do not hesitate to charge you that there is no evidence whatsoever of this allegation.</p> <p>2. That before the maturity of the note, and during the administration of the defendants as directors, the debts of the company exceeded the amount of the capital stock paid in by an amount greater than the amount of its indebtedness to plaintiffs. This is altogether a question of fact, to be decided by the jury. I therefore leave it to you upon the evidence which you have heard.</p> <p>3. That the defendants have failed to make the annual statement to the stockholders, and to make publication of same in the newspapers, as required by law. It is admitted that the statement and publication were not made. I am not prepared to say that the General Statutes of 1882 would not relieve the defendants from the obligation to publish the statement. You need not, therefore, 'consider the question of publication, and you may assume it to be unnecessary, as the case must turn on the failure of the defendants to make the annual statement to the stockholders. If the defendants were directors, they were bound to make this annual statement. This statement is a great safeguard against the mismanagement of the corporation by its directors. Whether these defendants have reasons or excuses for not making this statement cannot affect the case. The degislature has required them to make it, and attached the penalty unconditionally upon their failure so to do. I therefore charge you that if they have failed in this, they are liable, no matter what may be their excuses.</p> <p>The only remaining question is, whether this company was a manufacturing corporation. This is a question of law. If the charter which has been proved is the charter under which this company organized and operated, then I charge you, as matter of law, that it was a manufacturing corporation. The only rnaterial question for your consideration is whether the charter proved is the charter of this company.</p> <p>If you shall find for the plaintiffs, you can only find the amount of the note and interest. The plaintiffs are not entitled to recover against these defendants the amount of the judgment recovered by the plaintiffs against the company.</p> <p>The defendants appealed upon the following exceptions :</p> <p>The defendants except to the rulings of his honor, T. B. Fraser, presiding judge, upon the following grounds:</p> <p>1. Because his honor erred in ruling that the consideration of the note described in the complaint could not be inquired into, and in excluding the testimony of the witnesses, S. A. Pearce and J. P. Richardson, as to the same.</p> <p>2. Because his honor erred in ruling that testimony in support of any efforts on the part of the directors to obtain a meeting of the stockholders of the “South Carolina Cotton Grin Improvement Company” for the purpose of submitting to such meeting a statement of the financial condition of said company irrelevant; and in excluding the testimony of the witnesses, S. A. Pearce and J. P. Richardson, as to the same.</p> <p>3. Because his honor erred in ruling that the nature of the business in which the “South Carolina Cotton Grin Improvement Company” was engaged could not be shown by parol, and in excluding the testimony of the witnesses, S. A. Pearce and J. P. Richardson, as to the same.</p> <p>4. Because his honor erred in refusing to allow the defendants to amend their answer as requested.</p> <p>5. Because his honor erred in refusing the defendants’ motion for a non-suit.</p> <p>The defendants further except to the charge of the presiding judge upon the following grounds :</p> <p>1. Because his honor erred in charging the jury, “that in the present action it is equally incompetent for these defendants to inquire into the consideration of the note upon which the action is based.”</p> <p>2. Because his honor erred in excluding all evidence in reference to the consideration of the note.</p> <p>3. Because his honor erred in charging the jury, “if the defendants were directors, they had no right to resign as stated by the witness for defendant, so as to relieve themselves of any liability.”</p> <p>4. Because' his honor erred in charging the jury, “if the directors resigned at any time short of the completion of the twelve months, they are liable for the non-performance of any of the duties which the law requires of the directors during that period.”</p> <p>5. Because his honor erred in charging the jury, “if the defendants were directors, they were bound to make this annual statement.”</p> <p>6. Because his honor erred in charging the jury, “whether these defendants have reasons or excuses for not making this statement cannot affect the case. The legislature has required them to make it, and attached the penalty unconditionally upon > their failure so to do. I therefore charge you that if they have failed in this, they are liable, no matter what may be their excuses.”</p> <p>7. Because his honor erred in charging the jury, “the only remaining question is, whether this company was a manufacturing company. This is a question of law. If the charter which has been proved is the charter under which this company organized and operated, then I charge you as matter of law that it was a manufacturing company. The only material question for your consideration is, whether the charter proved is the charter of the company.”</p> <p>The plaintiffs appealed upon the following assignments of error:</p> <p>1. That his honor charged the jury that the plaintiffs could not recover the amount of the judgment in their favor against “The South Carolina Cotton Gin Saw Improvement Company” and interest, but were restricted to recovery at most of the amount of note on which said judgment was based and interest.</p> <p>2. That his honor refused to charge that if the defendants were directors, they were bound by statute to publish as well as make the annual statement, and withdrew from the jury all consideration of the liability of the defendants consequent upon the failure to make such publication.</p>

<p>Before Hudson, J., Barnwell, November, 1884.</p> <p>This case is fully stated in the opinion of this court.</p>

Before Fraser, J., Charleston, November, 1884. The opinion states the case.

Before Cothran, J., Fairfield, September, 1884. ' The opinion states the case. The Circuit decree, omitting its statement, was as follows : The pivotal point of the case, in my judgment, is the transaction of March, 1882, by which the assignee gave up the control of the estate and Groeschel became possessed of it. This was either justified under the act (or deed, if there was one) of composition, or it was an unauthorized abandonment of the trust by Withers.

<p>Before Kershaw, J., Clarendon, October, 1884.</p> <p>The opinion states the case.</p>

<p>Before Cothran, J., Laurens, February, 1885.</p> <p>This was an action by W. H. Pool against the Columbia & Greenville Railroad Company, commenced September 4, 1884. The opinion states the case. The appeal was brought upon the following exceptions:</p> <p>I. Because the complaint alleged ownership and unlawful detention of the goods on the third and fourth days respectively, of September, 1884, and there was some evidence to sustain these allegations. II. Because neither the answer nor defendant’s evidence justified the defendant’s conduct in refusing to deliver the goods, but, if so, it was a matter.solely for the jury. III.. Because the goods were not in transit, but had reached their destination, and were in the constructive possession of the plaintiff. IV. Because the statement agreed upon by counsel was only evidence for the defendant, and should have been submitted to the jury. V. Because the complaint should not have been dismissed on motion of non-suit by defendant’s counsel, and judgment should not have been entered up against the plaintiff for the return of the goods or their value.</p>

Before Witherspoon, J., Marlboro, September, 1884. The opinion states the case. The order of the Circuit Judge, omitting its statement, was as follows: The defendants, William T. Newton, his wife, Mary Newton, and Rebecca Wright, demur to the complaint on five grounds. The first and second grounds of demurrer allege a defect in parties in the omission of the names of certain persons.

<p>Before Kershaw, J., Charleston, March, 1884.</p> <p>This was an action by the Protestant Episcopal Church of the Parish of St. Philip, in Charleston, in the State of South Carolina, against the Zion Presbyterian Church of Charleston, of Charleston County, commenced September 30, 1882. The opinion of this court sufficiently states the case. The Circuit decree was as follows:</p> <p>This action was tried by the court without a jury on the pleadings, the testimony taken before the master, and the argument of counsel. There were numerous objections made to the testimony, which I do not deem it necessary to consider severally. It is sufficient to say that few of the matters objected to (if any) involved facts which in any way affect the result I have reached, and I do not consider any of them well taken.</p> <p>It will be noticed that plaintiffs’ title to the land is controverted by the answer. This raises an issue which can only be determined by a jury trial, unless waived by the defendants. It has not been so waived. Dewalt v. Kinard, 19 S. C., 291. In so far, therefore, as plaintiffs seek to recover possession of the premises, they cannot have that relief at the hands of the court without a jury. In this view of the case it would not be necessary for me to pass upon the question of legal title as presented by the pleadings and the evidence. Lest, however, a different view may prevail elsewhere, I will proceed to give my conclusions in regard thereto.</p> <p>I will premise by saying that the plaintiffs have established a perfect title in them at the time that the lots in question were conveyed to the Glebe Street Presbyterian Church, nor do I entertain a doubt that the law contended for by the plaintiffs is correct: that lands granted to a corporation, other than a moneyed or trading company, revert to the grantor on its dissolution by the expiration of its charter, unless there be a valid alienation during its existence. The doctrine is well stated by Chancellor Kent (2 Corn., _ *282), thus: .“Corporations have a fee simple for the purposes of alienation, but they have a determinable fee for the purpose of enjoyment. On the dissolution of the corporation, the reverter is to the original grantor or his heirs ; but the grantor will be excluded by the alienation in fee, and in that way the corporators may defeat the possibility of a reverter.” And again, he says: “According to the old settled law of the land, where there is no special statute provision to the contrary, upon the civil death of a corporation, all its real estate remaining unsold reverts back to the original grantor or his heirs.” 2 Coin., *307. Says Mr. Blackstone : “A body politic may be dissolved, which dissolution is the civil death of the corporation, and in this case the lands and tenements shall revert to the person, or his heirs, who gi-anted them to the corporation; for the law doth annex a condition to every such grant, that if the corporation be dissolved, the grantor shall have the land again, because the cause of the grant faileth. The grant is, indeed, only during the life of the corporation, which may endure forever ; but when that life is determined by the dissolution of the body politic, the grantor takes it back by reversion, as in the case of every other grant for life.” 1 Bl. Com., 484.</p> <p>It is not denied that this was the common law rule, but it is contended that it has generally been rejected in this country as to private corporations. The text writers, Angelí & Ames, Dillon, Fields, and others, and even Chancellor Kent himself, are cited to this effect. Chancellor Kent in a note (2 Com., 307) says : “The rule of the common law has, in fact, become obsolete. It has never been applied to insolvent moneyed corporations in England. The sound doctrine now is * * * that the capital and debts of banking and other moneyed corporations constitute a trust fund for the payment of creditors and stockholders.” “The rule of the common law in relation to the effect of dissolution upon the property and debts of a corporation has, in fact, become obsolete and odious. * * * Indeed, at this day, it may well be doubted whether, in the view at least of a Court of Equity, it has any application to other than public and eleemosynary corporations, in which it had its origin.” Angelí $ Ames Corp., § 779, a.</p> <p>Mr. Dillon says: “.Since this doctrine has, in this country, been generally rejected as to private corporations, organized for pecuniary profit, and rests upon no foundation in reason or justice, it may perhaps be safely affirmed that it -would not, on full consideration, be applied to the dissolution of a municipal corporation, by an absolute and unconditional repeal of its charter, or (if that may be done) to the case where the charter of such corporations is forfeited by a judicial sentence.” (Billon Mun. Corp., § 113.) Mr. Field says on this: “If, in the case of municipal corporations, a Court of Chancery will treat the corporation’s assets as a trust fund in ease of the dissolution of a corporation by legislative action, and will assume the execution of the trust, or see that it is properly executed, as has been noticed, the same rule ought to prevail in cases of private corporations for pecuniary gain, and the tendency of recent opinions seems to support this view; and to sustain the doctrine that the surplus assets, after the satisfaction of the claims of creditors, and the payment of expenses, even in the absence of statutory provisions on the subject, belong to the stockholders; that lands conveyed to such a corporation for full consideration in fee do not revert to the grantor, and the doctrine of the old common law in such cases as to reversion and forfeiture of the Corporate property, if applicable at all, is not applicable to private corporations for pecuniary emolument.” Field Oorp., § 491.</p> <p>A number of cases is cited to sustain the doctrine so laid down, the most authoritative of which, perhaps, is that of Bacon v. Robertson, 18 How., 480, in which Judge Campbell says: “Modern legislation has modified the odious rule of the common law, that upon the dissolution of a corporation its remaining real estate unsold reverts to the grantor and his heirs, and the courts, in a similar spirit, hold that where 'a corporation is authorized to acquire a fee simple to lands belonging to private persons for public use, and such acquisition is had, and compensation accepted, no reversionary estate remains, but the property may be used for any purpose, or may be disposed of by the corporation.” That was the case of a municipal corporation dissolved by a decree of the court, and there seems to be no doubt that upon the dissolution of the charter of a private moneyed corporation, or of a municipal corporation, by an act of legislature or judicial decree, the assets of such corporation will be applied to the payment of the debts of the corporation, and the remainder be divided among the stockholders.</p> <p>Mr. Field says (§ 492): “This right of creditors and stockholders is based not only upon natural justice and manifest equity, but it has recently been held that it is protected by the provisions of the constitution of the United States.” The principal case referred to there is that of Curran v. Arkansas (15 How., 805), which is a very instructive authority on this point reviewing the previous cases. Curtis, J., delivering the opinion of the court, quotes from Mumma v. Potomac Company (8 Pet., 281), where it is said, “The obligation of these contracts survives, and the creditors may enforce their claims against any property belonging to the corporation which has not passed into the hands of bona fide purchasers, but is still held in trust for the company, or for the stockholders thereof, at the time of its dissolution in any mode permitted by the local laws.” The learned judge then proceeds : “Indeed, if it be once admitted that the property of an insolvent trading corporation, while under the management of its officers, is a trust fund in their hands for the benefit of creditors, it follows that a Court of Equity, which never allows a trust to fail for want of a trustee, would see to the execution of that trust, although by a dissolution of the corporation the legal title to its property had been changed.” Id., 311.</p> <p>These citations are sufficient to show what the common law rule is, and how far, and upon what principles, it has been modified. It has been seen that at common law every grant of land to a corporation was a grant for the life of the body politic. That it conferred a power of alienation, but was also coupled with a reservation of the reversion, if the land should not be aliened during the life of the corporation. A reversion is not a new estate, arising at the termination of the grant, but a remnant of the estate not granted. It is “the residue of an estate left in the grantor to commence in possession after the determination of some particular estate granted by him.” 2 Bl. Com., 175. Whenever, under this law, there was a grant in fee of land from an individual to a corporation, there was left in the. grantor this residuum of the estate, subject to be divested by an alienation during the existence of the corporation.</p> <p>By an act of the colonial legislature, 1712 (2 Stat., 413, § 5): “All and every part of the common law of England,” where the same was not altered by the English statutes therein made of force, or “inconsistent with the particular constitution and laws of this province” (with certain other specified exceptions), was made and declared to be “in as full force and virtue within this province as the same is, or ought to be, within the said kingdom of England.” In the general statutes of 1872 (p. 767, §10) and in the general statutes of 1882 (§ 2738) the same common law was continued of force. By this legislation the common law, as it existed in 1712, not inconsistent with the constitution, usages, and customs of the then province, and not since changed by statute, is made the law of South Carolina. By that law the reversion of lands conveyed in fee to a corporation remained in the grantor — an estate vested and transmissible to his heirs by descent.</p> <p>That this has continued the law in South Carolina has been recognized in several cases. Elliott v. Morris, Harp. Eq., 281; Attorney Greneral v. Society for the Relief of Elderly and Disabled Ministers, 10 Rich. Eq., 605. In the last case the opinion of the Court of Errors was delivered by Ch. Dunkin for all the judges. Supposing a case where a corporation would cease to exist, he says : “The real estate, if any, of the corporation would revert to the grantor.”</p> <p>I am now considering a question of the legal right to an estate. This estate is shown to be in the grantor upon the dissolution of a corporation holding lands. How, then, can I notice the questions of trust relied on to prevent the operation of the legal results in this case ? Is there any power in a court of law to divest a vested legal estate in land in order to enforce an equity ? I can find none. If the law in question is odious, as has been said, the legislature and not the courts should alter it. Until so altered it is the duty of a court of law to declare and enforce it. I admit that courts of law are called upon to apply the maxims of the common law so modified and varied as to meet the novel exigencies of modern society; but where the common law recognizes the legal right to an estate to be in a particular person, under a particular state of circumstances, and that common law has been perpetuated by repeated and the latest' statutory enactments, and recognized by the dicta of some of the ablest of our modern judges, I can find nothing to justify me in attempting to change the law in order to meet the requirements of a supposed necessity or expediency.</p> <p>In saying this, I do not mean to intimate an opinion that in equity the rights of creditors and stockholders, if there were any, of a defunct corporation would not be enforced Avhenever brought properly before a court administering equity. I agree entirely that they would be, and believe that the cases cited fully sustain the equity doctrine in favor of creditors and stockholders, both here and in England. Such a doctrine is entirely consistent with the right of the grantor to the legal estate of reverter. To enforce such trusts, equity Avould follow the legal estate in the hands of the grantor after he had recovered it at law. This is what is meant by the passage cited from (Jarran v. Arkansas, to the effect that a Court of Equity would see to the execution of the trust, “although, by a dissolution of the corporation, the legal title to its property had been changed.” What “change of legal title,” affected by a dissolution, can here be meant but the reverter to the grantor?</p> <p>I think, however, that this doctrine of equity would not go beyond securing the creditor and stockholders of a trading or moneyed corporation. So far as I am aware, it has never been extended further than this except in the case of a municipal corporation. There are no stockholders in a religious or charitable corporation, and here the equitable relief in such cases would seem to be confined, to the case of creditors of necessity. How could equity administer the assets of a corporation like this, after it was dissolved, for the benefit of the individuals composing the congregation? No such instance has been brought to the notice of the court, and it seems to me that the authorities relied upon to maintain the doctrine are all eases of corporations connected with trades, except alone the case of a municipal corporation when it had been decreed forfeited by the courts.</p> <p>Much more might be said in support of the views I have here expressed, but I think what I have already said sufficient to indicate my reasons for the opinion I have formed.</p> <p>While, however, I am with the plaintiffs on this point of law, I am of opinion that it cannot avail them here, because the premises in question were duly conveyed by the Glebe Street Presbyterian Church to the Zion Presbyterian Church, by the deed of conveyance of May 10, 1866; and the charter rights of Zion Presbyterian Church were continued by their recharter on September 4, 1880, under the act of 1874. The sufficiency of the deed of alienation has been questioned, on the ground that the seal thereto was not duly proven to be the seal of the corporation. A wafer was used for a seal, but that is a sufficient seal, if so intended. Relph ¿■ Qo. v. Gist, 4 McGord, 267. That it was so intended in this case is to be derived from the circumstances that the corporation authorized the deed to be made by the president; that there was no regular corporation seal, and that this wafer ivas affixed to the deed, signed by the president, and tested by the words “witness the seal of the said Glebe Street Presbyterian Church,” attested by the signature of its president, &c.</p> <p>Says Mr. Fields : “On general principles, any mode of impression which would answer for private seals, in the absence of other statutory regulations, would be good in the case of corporation seals.” § 288. “It may appoint an agent to convey by resolution not under seal.” §§ 283, 285. And “the common seal of a corporation affixed to an instrument purporting to be executed by the proper agent, makes it a specialty where such an instrument is required, and has the same effect as if executed in a like case by a natural person.” Ibid. It is immaterial what is used as a seal when an impression is required, “provided it is something adopted by the corporation, or by its authorized agent, and is placed upon the instrument by the proper agent, or even by liis directions.” Ibid, § 287. “When executed by the proper agent or officer of the corporation, and sealed, though by the impression of the common desk seal of a merchant, it will be presumed to be the seal of the corporation until rebutted by competent evidence.” Ibid.</p> <p>It is said in Angelí $ Ames on Corporations, § 218: “We see no reason, unless the act of incorporation expressly provides what the common seal shall be, why the substitute allowed for the private seal of an individual should not be allowed for the seal of a corporation.” “In a note to section 288 of Mr. Fields’ work it is said, a votex authorizing a committee to sell land empowers them to make the necessary deeds in the name of the corporation, and if the committee consists of several, who all sign their names, only one seal is necessai-y.” lecher v. Freeman, 3 Chreenl., 338. Authority to make a deed Avould imply power to adopt a seal where no regular corporate seal has been shoAvn to have been adopted by the body.</p> <p>I therefore think the deed sufficient on this ground. But after possession for so long a time under the deed, without any disaffirmance on the part of the corporation, the .act of the agent would be considered as having been affirmed and the corporation would be bound. If the deed was good as against them, it would bind all other persons.</p> <p>As to the effect of the renewal of the charter of the Zion Presbyterian Church, of Charleston, I will assign a few reasons why 1 have held it sufficient to continue the chartered rights of the defendants. In regard to corporations of this class, the act of 1874 delegated to the clerk full power to grant charters in the mode therein prescribed. It is conceded that, on the creation of a new corporation, upon the dissolution of an old one, the title to the lands belonging to the old corporation does not revive in the new, except as against the State. “In England it would require an act of parliament to revive the title as against the original grantor, or his heirs, but it would be at least questionable whether any statute with us could work such an entire renovation, because vested rights cannot be divested by statute.” 2 Kent, *309. I think this cannot be questioned.</p> <p>The point under consideration, therefore, depends upon whether there was a renovation of the Zion Presbyterian Church, of Charleston, or was it the creation of a new company after the dissolution of the old ? The petition was signed by the president and secretary and eight other members of the corporation, and asked for a charter for the Zion Presbyterian Church, of Charleston, under the provisions of the act of 1874. Notice was published in the News and Courier, a gazette published, in Charleston, December 9, 1878, that a petition had been filed with the clerk of the court for Charleston County for the renewal of the charter of the Zion Presbyterian Church, of Charleston, S. C., pursuant to act of assembly approved February 20, 1874. This proceeding to obtain a recharter under the act of 1874 was commenced before the expiration of the former charter. The clerk was not authorized by the act to renew, but to grant charters, yet the granting of a charter to a corporation by the same name, and with the same powers, before the expiration of the former charter, would be but a renewal of the charter in effect. I think, therefore, that nothing can be gained by the contention that this is not a renewal, but a new charter. A corporation may lay down its old charter and take a new one without discontinuing the corporate life or the corporate privileges, even though the funds be appropriated to other and different objects under the new charter. Attorney General v. Clergy Society, 10 Rich. Eq., 604.</p> <p>The charter here expired before the actual issue of the new charter by the clerk. The act required the notice to be published thirty days before the time of the application, and if no objection should be made within ten days thereafter, the clerk was required to grant the charter. Under the notice given here, if no objection was made on' or before January 19, 1879, the petitioners were entitled to have their charter. It was the duty •of the clerk to issue the charter on January 20, 1879. It was not, in fact, issued until September 4, 1880, after the old charter had expired by its own limitation. If the clerk had done his •duty under the act, the rights of the corporation would have been preserved. Are they to be defeated by his omission of duty ? I think not. The new charter, in my opinion, relates back, and will be treated as taking effect from the day when the corporation was entitled to have the charter issued under the act, and it operated, therefore, to continue the corporation with all its previous powers, as in the case of a sheriff’s deed, which relates back to t'he sale so as to protect the possession of the purchaser. McCall v. Campbell, MSS. Dec.; Kingman v. Glover, 3 Rich., 27; Bank v. Manufacturing Co., 3 Strob., 192. Upon the same principle, the charter here should protect the corporation from theforfeitures consequent upon a dissolution under the circumstances.</p> <p>There 6an be no doubt of the intention of the corporation to renew and continue their corporate powers by the new charter, and it is said always to be a question of intention where a corporation takes a new charter. Angelí Ames on Corporations, § 780. Nor do I think it material that the clerk added to the name of the corporation the words “of Charleston County.” See Fields on Corporations, § 24. I conclude, therefore, that plaintiffs have not established a legal right to recover possession of the premises.</p> <p>It remains to consider the right of the plaintiffs to the equitable relief demanded, to wit, a restraining order to confine the defendants to the use of the property, in accordance with the trusts and conditions contained in the original lease of the same to' Caldwell and others. It is only upon this ground that plaintiffs seek to restrain the defendants, and not because the proposed use of the premises injure them as owners of adjacent lots and tenements.</p> <p>I fail to see how the trusts of the lease attach to the deed of release. I am of opinion that the effect of the conveyance to Glebe Street Church of the fee of the land destroyed the previous estate held by them as lessees; that the two estates merged, and that the conditions annexed to the lease were extinguished. Where two estates meet in the same person, without any intermediate estate, the less is merged in the greater. 2 Bl. Oom., 177; 4 Kent, 100; Mangum v. Piester, 16 S. 0., 330. If the feoffor or lessor release to feofee or lessee all conditions or all demands in the land or confirm the estate of the feoffee, without condition by either of these means, the condition is -destroyed forever. Shep. Touch., 158. Though all conditions are extinguished by merger of the particular estate with the reversion at law, in equity trusts are preserved. 4 Kent, 102. But if the trust estate and the legal estate unite in the same person, the trust is extinguished. 2 Wash. Real. Prop., 470. The equitable estate is merged in the legal. Ibid. For no man can be a trustee to himself. Kill Trust., 25; Lewin Trusts, 16.</p> <p>Here the plaintiffs claim that there was a trust or a condition as to the user of the land which they had an equitable right to have enforced by injunction. Such a trust or condition was annexed to the lease, but when they conveyed the fee to the lessees the trust was at an end, because the conveyance was without qualification or condition, and accompanied by the usual warranties. The recital does not qualify the deed in any particular. Its office was only to 'trace the history of the transaction, and to describe the relations of the parties in regard to the property and to each other, leading up to the grant, which was absolute in its terms. Deeds are to be taken most strongly against the grantors, and if the form of the conveyance is absolute, as here, nothing is to be taken as intended that is not plainly expressed in the deed.</p> <p>Holding these views, I am led to the conclusion that plaintiffs have no right of action upon any of the grounds claimed. It is needless to consider any other questions made in the case, since the result would not be changed thereby.</p> <p>It is therefore ordered, adjudged, and decreed, that the complaint be dismissed, and that the plaintiffs pay the costs herein.</p> <p>Both the plaintiffs and defendants^ appeal from the foregoing decree, upon the following exceptions:</p> <p>PLAINTIEES’ EXCEPTIONS.</p> <p>1. Because his honor erred in holding as follows: “It will be noticed that plaintiffs’ title to the land is controverted by the answer. This raises an issue Avhich can only be determined by a jury trial, unless waived by the defendants. It has not been so Avaived. In so far, therefore, as plaintiffs seek to recover possession of the premises, they cannot have that relief at the hands of the court Avithout a jury.”</p> <p>2. Because his honor erred in holding that “the premises in question Avere duly conveyed by the Glebe Street Presbyterian Church to the Zion Presbyterian Church by the deed of conveyance of May 10, 1866,” and that the same was an alienation. And that “the charter rights of Zion Presbyterian Church Avere continued by their recharter on September 4, 1880, under the act of 1874.”</p> <p>3. Because his honor erred in holding the said deed of May 10, 1866, to be the deed of the corporation and sufficient as such.</p> <p>4. Because his honor erred in holding as folloAA's: “But after possession for so long a time under the deed, Avithout any disaffirmance on the part of the corporation, the act of the agent would be considered as having been affirmed, and the corporation Avould be bound. If the deed was good as against them, it would hind all other persons.”</p> <p>5. Because his honor erred in holding that the charter granted by the clerk of the court on September 4, 1880, to the defendants, “The Zion Presbyterian Church, of Charleston, of Charleston County,” did not create a neAv corporation, but Avas a renovation or a reneAval or a continuance of the corporation known as the “Zion Presbyterian Church, of Charleston,” with all its previous powers and rights.</p> <p>6. Because his honor erred in holding that “plaintiffs have not established a legal right to recover possession of the premises.”</p> <p>7. Because his honor erred in holding that the trusts of the lease from the plaintiffs to John Caldwell and others did not attach to the deed of release, but that the conditions annexed to the lease were extinguished and the trust at an end, and that the recital does not qualify the deed in any particular.</p> <p>8. Because his honor erred in concluding that “plaintiffs have no right of action upon any of the grounds claimed,” and in dismissing the complaint.</p> <p>dependants’ exceptions.</p> <p>That the court erred in holding that “lands granted to a corporation other than a moneyed or trading company revert to the grantor on its dissolution by the expiration of its charter, unless,” &c. This ancient right of i'everter, it is submitted, is in this State “obsolete and odious”; or, if existing at all, exists only as to corporations purely public or eleemosynary, and churches or religious corporations are neither.</p>

Before Kersiiaw, J., Sumter, October, 1884. The case is fully stated in the Circuit decree, which was as follows : This case was heard upon exceptions taken by the plaintiff to the return of the commissioners setting apart the homestead of the defendant. At the October term, 1883, the plaintiff obtained his judgment ; in December thereafter the defendant’s wife died, leaving the defendant and an adult son, who had always resided in the family, occupying the homestead.

<p>Before Cothran, J., Richland, July, 1884.</p> <p>The decision of this court in the former action of Lunsford v. Brown (19 S. 0., 560), and the statements in the Circuit decree, fully state this case.</p> <p>By agreement of counsel the following questions were submitted to his honor for decision:</p> <p>First. Is the plaintiff estopped from bringing the present action by the judgment in the former case?</p> <p>Second. If not, does the judgment in the former action so conclusively establish the existence of a judgment of the Probate Court discharging the defendant, Brown, as to estop the plaintiff from averring against its existence in the present action ?</p> <p>Third. If so, are the allegations of the complaint in the present action sufficient to attack or set aside such a judgment or order of discharge of the Probate Court, on the ground of fraud and imposition ?</p> <p>The Circuit decree was as follows :</p> <p>The determination of this case must depend upon the true meaning and effect of the decision of the Supreme Court of a former case between the same parties, having in view the same objective points, and which is to be found in 19 S. C., 560.</p> <p>^ #</p> <p>The Supreme Court held this (an amendment making the allegata conform to the probata) to be erroneous — that such amendment was allowable. If -the deliverance of the Supreme Court had not gone beyond this, the point under consideration now would have been plainly presented, but I am embarrassed by the fact that the Supreme Court have, to some extent at least, considered the case upon its merits, and have found that the plaintiff had no cause to complain of the conduct of his guardian, the defendant Brown. Nor would I otherwise venture to make (which I do with great deference) some observations upon the pleadings in the former case.</p> <p>When the plaintiff determined to begin his suit his counsel had free access to the records of the probate office. Knowledge of these was indispensable in the preparation of his case. He must have seen his client’s receipt in full of file there. It was a lion in his path. He passed on, however, without regarding it. Surely, if not seen by him, its roar was heard when the answers came in. It was unheeded still. Whether an amendment of the complaint was necessary upon the coming in of the answers, depends entirely upon the true character and effect of the transaction of May 21 in the probate office. If that was a judgment of the Prohate Court — a court having jurisdiction of the subject-matter — it should have been assailed directly, not collaterally, and that by way of amending the- complaint before trial. If, upon the other hand, it was merely a matter of payment, no amendment of the complaint was necessary.</p> <p>To the neu matter set up in the answer the plaintiff had no right to reply. The reply is only allowed under the code in two possible cases — the one to a counter-claim, the other upon requirement of the defendant, upon his motion, and in the discretion of the court. Every “allegation of new matter in the answer not relating to a counter-claim is to be deemed contradicted by the adverse party, as upon a direct denial.” Code, § 189. A familiar illustration may be given: Plaintiff sues upon a note (simple money demand) for $500. Defendant answers, averring payment of $200, for which he holds plaintiff’s l’eceipt; this amount is sufficiently controverted by the terms of the complaint to make the issue upon it. Defendant at the trial produces the receipt, and-the plaintiff, without amending his complaint or by reply (unless the latter be demanded by the defendant and ordered by the court) would be allowed to prove, if he could, that the signature to the receipt was not genuine, a forgery, or that it had been obtained by duress. Such proof would go to cut dowm and destroy the defendant’s defence, and is admissible under the rule of pleading cited. The objective point at which the plaintiff is aiming is the recovery of the $500 — not the forgery, nor the duress. Of the former he might be entirely ignorant; of the latter, however, he would have knowledge, as well of the circumstances attending the act of duress as of the existence of the receipt for $200 with his genuine signature to it.</p> <p>And so here the plaintiff must be held to have known of the existence of his receipt for $1,496.78 in full of all claims against his guardian. True, the objective point of this suit happens not to be, as in the case of the $500 note supposed, a liquidated demand, but that cannot so alter the case as to destroy the analogy. His demand is for an accounting, for making certain that which can be made as certain as if it were a liquidated sum. He is not driving at the fraud; he is demanding an accounting, and proposes to drive through the fraud, if fraud there be, to reach by this action, as by the other already tried, the objective point, which is the accounting. If the proceedings in the probate office did not rise to the dignity of a judgment or decree of that court, it was not necessary to change the actual, substantial cause of action,' in order to break down the defence, of the defendant. An accounting was sought in the former action, and so also in this.</p> <p>Mr. Pomeroy, after defining the term, “a cause of action,” and distinguishing that from “the object of the action” (see sections 452, et seq.), with great force and clearness in section 455 warns the pleader “against the mistake of supposing that a distinct cause of action will arise from each special subordinate right included in the general primary right held by the plaintiff, or from each particular act of wrong, which, in connection with others, may make up the composite but single delict complained of.” Pom. Rem. The facts which make up the plaintiff’s primary right here are (1) the receipt by the guardian of the ward’s estate, and (2) the liability of the guardian upon the ward’s attaining his majority to pay the same to him.- The defendant’s delict is the neglect or refusal so to pay, alleging as a reason for not doing so, that he has in fact already done so. If this reason, on the contrary, was shown to have been “a particular act of wrong,” to wit, of imposition by the guardian upon the ward, the right of the plaintiff to show this is subordinate to his general primary right to the accounting, and is not another cause of action.</p> <p>It cannot be denied — it must in fact be conceded — that if the merits of this controversy have been heretofore-passed upon, the litigation must cease. “Interest rei publica .finis sit litium.” In view of the order of reference to the master, the testimony taken, his report, the exceptions thereto heard by the Circuit Judge, his decree, the grounds of appeal to the Supreme Court, the arguments of counsel thereon, the opinion of the Supreme Court, the petition for a rehearing, and the refusal thereof, with the reasons stated, can it be successfully maintained that the merits of this case have not been considered ? [Here follow quotations from the Circuit decree of Judge Kershaw and from the opinion of this court.]</p> <p>On January 24, 1884, the present action was begun; the parties to both suits are the same persons. The complaint, after setting forth the appointment of the guardian, the execution of the bond, &c., charges the defendant Brown with having received as the corpus of the plaintiff’s estate the sum of $3,146 92, “besides interest which accrued thereon;” that said defendant filed annual returns in the probate office, “all of which, subsequent to the first, commenced with the balance of the preceding returns, and in such returns failed to credit the plaintiff with large sums of money received by him as interest on the funds of plaintiff's estate which had been invested, and with interest on such sums as were held by him uninvested, but charged the plaintiff with large sums which were not properly chargeable to him;” that plaintiff was raised upon a farm, with little education and no experience in business; had just attained his majority, and was greatly under the influence of his said guardian, and was thus induced’ to accept, in settlement of his claims against his guardian, a less sum than that to which he was actually and justly entitled, and prays that the pretended settlement and discharge be set aside, and that he have judgment for such amount as upon an accounting may be found' due to him, &c.</p> <p>The defendant Brown especially, the others being his sureties,, denies that he received any other funds of the plaintiff except those with which he was charged in his annual returns; denies the charge of imposition and undue influence; and insists, as a defence to the action, upon the settlement of May 21, 1880, in the probate office, when he paid over the whole balance due to the plaintiff, and for which his receipt in writing was given and filed in the office of the probate judge; and, further, that all matters touching said guardianship have been heretofore made the subject of judicial investigation and determination, and that the plaintiff has no right to vex him and his sureties again in this behalf.</p> <p>By comparison of the two complaints, it will be seen that, except as to the allegations in .the latter assailing the bona fides of the transaction of May 21, there is but little difference between them; the parties are the same persons and the object of each action is the same, to wit, an accounting. Besides, even in the latter complaint, under the rules of pleading which regulate the practice as well for setting aside a settlement for fraud as for surcharging and falsifying a stated account, and more especially in the case of a settled account, there is a conspicuous and fatal omission to state, with the requisite particularity, the facts and circumstances relied upon as characterizing the fraud. The authorities upon this point are innumerable and the current is unbroken. 1 Dan. Oh. P. $ P., 324, and note; 2 Ibid., 1585 ; Kerr Fr. M., 365; Porter v. Gain, Me Mull. Fq., 84; Fraser v. Hext, 2 Strob. Fq., 250. Also McDoto v. Brown, 2 S. O., 95, where the cases are collated carefully and the whole subject is exhaustively reviewed. The facts of the case under consideration and the authorities cited, with the argument based even upon contrary suppositions, must be equally conclusive of the plaintiff’s case. And this the logicians call a dilemma.</p> <p>Take another horn of it. If the transaction of May 21, 1880, was not a decree or judgment of the Probate Court, no amendment was necessary, and the case has been disposed of. If it was a judgment or decree, it should have been assailed as such by complaint, original or amended. That the duties of life are more than life is nowhere better exemplified than in the crowded courts of justice. Every suitor is entitled to his day in court — but only to his day. When in such serious conflict the lists are set, the forces must not be brought up in detail, singulatim, but in full array; and, to drop the metaphor, a plaintiff is not allowed to present his case by piecemeal. Time, convenience, good faith, and fair dealing forbid, and these latter should be as conspicuous in pleading as elsewhere.</p> <p>The Supreme Court has so frequently discussed the matter of res adjudícala (see the cases of Hart v. Bates, Fraser Jf Dill v. Gharleston, and others, too recent to be unfamiliar) that it hardly seems necessary to prolong this decree by any observations of my own upon this subject, and I forbear to do so.</p> <p>There are perhaps two other points in the case to which allusion should be made briefly and in conclusion. In refusing the petition for a rehearing, the Supreme Court distinctly say, touching the discharge of Brown, the guardian, by the probate judge, that “the judgment of this court is not based upon that assumption,” but “that the judgment of this” (that) “court was rested on the settlement between the parties pleaded in bar,” &c. The judgment is, “that the complaint be dismissed.” It has been settled by very high authority that “the decree dismissing the bill in the former suit in the Circuit Court of the United States, being absolute in its terms, was an adjudication of the controversy, and constitutes a bar to any further litigation of the same kind between the same parties. A decree of-that kind, unless made because of some defect in the pleadings, or for want of jurisdiction, or because the complainant has an adequate remedy at law,- or upon some other ground, which does not go to the merits, is a final determination. Where words of qualification such as ‘without prejudice,’ or other terms indicating a right or privilege to take further legal proceedings on the subject do not accompany the decree, it is presumed to be rendered on the merits. Accordingly it is the general practice in this country and in England when a bill in equity is dismissed without a consideration of the merits, for the court to express in its decree that the dismissal is without prejudice ; the omission of the qualification in a proper case will be corrected by this court on appeal.” Durant v. Essex Company, 7 Wall., 109.</p> <p>It must therefore follow from this: (1) that if the complaint has been dismissed without words of qualification; (2) if it was not dismissed on account of a decree or judgement of the Probate Court which could not be collaterally attacked; but (3) on account of a settlement betw'een the parties, which was subordinate to the general primary right of action and assailable without amendment; and (4) that the merits of that settlement have been passed upon — the bar to any further litigation of the same subject between these, the same, parties is effectual and complete. .</p> <p>The other point is, that the defendants may with propriety claim the protection of article IV., section 8, of the constitution : “When a judgment or decree is reversed or affirmed by the Supreme Court, every point made and distinctly stated in writing in the cause, and fairly arising upon the record of the case, shall be considered and decided,” &c. Applying this provision of the constitution to the exceptions contained in the Brief on appeal to the Supreme Court, and to the decision made by the Supreme Court, it is manifest that the matters sought by the plaintiff, in this action to.be drawn again into controversy, were “made and distinctly stated in writing,” and have been determined, and the evidence of. such determination “preserved with the records of the case.”</p> <p>Wherefore it is ordered, adjudged, and decreed, that the complaint be dismissed, and that the defendants have judgment against the plaintiff for their costs.</p> <p>Plaintiff appealed upon the following exceptions:</p> <p>I. Because his honor held that the accounting sought in this action could have been had in the former action between this plaintiff and the above named defendants without amendment, notwithstanding the plea of settlement, and that the decree in said cause was an adjudication of the claim set up in this action.</p> <p>II. Because his honor held that plaintiff’s right to set aside the alleged settlement for fraud and imposition was subordinate to his general right to an accounting.</p> <p>III. Because his honor held that the same rules should govern the pleadings in this action as are applicable to an action to surcharge or falsify an account stated.</p> <p>IY. Because his honor held that the complaint in this action does not “state with requisite particularity the facts and circumstances relied upon as characterizing the fraud,” and that the facts alleged are insufficient to constitute a cause of action.</p> <p>Y. Because his honor held the judgment in the former action a bar to this action, and dismissed the complaint herein.</p>

<p>Before Cothran, J., Richland, July, 1884.</p> <p>The opinion states the case.</p>

Before Witherspoon, J., Darlington, October, 1884. The plaintiff, John McSween, having obtained judgment on March 22, 1880, against Samuel O. McCown, upon a sealed note bearing date June 3, 1875, and an execution thereon being returned wholly unsatisfied, commenced this action April 27, 1882, against Samuel O. McCown, and the widow and children of Reese A. McCown, deceased. The opinion sufficiently states the case.

<p>Before Witherspoon, J., Barnwell, March, 1884.</p> <p>The Circuit decree, omitting such facts as are re-stated in the opinion, was as follow's:</p> <p>The defendant, A. J. Weathersbee, occupies the position of a surety. The contract of a guarantor or surety cannot be enlarged beyond its terms. The court say, in Tinsley v. Kirby, 17 S. 0., 4: “A rule never to be lost sight of in construing the liability of a surety is that he is a favorite of the law, and has the right to stand on the strict terms of his obligation, where such terms are ascertained. This is a rule invariably recognized by the court, and is applicable to every variety of cases.” Plaintiff’s action is based upon written contracts of guaranty, and the guarantor’s liability depends upon the construction of said contracts. The terms of the contracts, except as to amounts to be advanced, will be found in the paper signed by A. J. Weathersbee, February 1, 1881, as the paper subsequently signed May 26, 1881, merely furnishes a further guaranty for $1,500 more than it was at first agreed that plaintiffs should advance.</p> <p>But for the expression in the guaranty, “and commissions as agreed,” it seems to me that the intention of the parties could be readily discovered, and the contract would be free from ambiguity. The first paper states that the guarantor assumed the liability as surety for A. M. Weathersbee & Co., in consideration of plaintiffs agreeing to advance to the principal debtors not exceeding the sum of $7,000 and interest. This amount was increased $1,500, May 26, 1881, by the second paper referring to the limit in the original undertaking It therefore appears that the contract expressly imposes a limitation upon, the amount to be advanced with interest, and as this limitation was the consideration that induced A. J. Weathersbee to become guarantor, it must have been intended as a measure of the amount of the guarantor’s liability to plaintiffs. The terms advance, accept, interest, and commissions, used in the guaranty, evidently contemplated the repayment at some future time.</p> <p>I construe the terms, “and commissions as agreed,” in the guaranty, to indicate that cotton was intended to be shipped plaintiffs by the principal debtor, as the medium for paying for the advances, and that the term commissions referred to some special rate of compensation agreed to be allowed plaintiffs for the sale of the cotton as factors. There was no antecedent debt due by the principal debtor to plaintiffs, as the principal debtors had just commenced business relations with plaintiffs. As three hundred bales had been mentioned as the probable amount of cotton that would be handled by the principal debtors, it would be reasonable for them to try and make special rates as to the commissions to be allowed on the sale of such a large lot of cotton. The defendant, A. J. Weathersbee, testifies that at the time he gave the guaranty he did not expect plaintiffs to advance to A. M. Weathersbee & Co. beyond the amount of the guaranty.</p> <p>I am constrained to conclude and hold that under the contract of guaranty plaintiffs were limited to $8,500 advances to be made A. M. Weathersbee & Co., with interest, and that upon the payment of said sum and interest, by shipments of cotton by the principal debtors, the guarantor should be discharged. As already observed, plaintiffs’ account shows payments by A. M. Weathersbee & Co. of the sum of $15,047.40. This view as to the intention of the parties is confirmed by the action of the plaintiffs. It appears by plaintiffs’ account that A. M. Weathersbee & Co. commenced shipping cotton to plaintiffs on February 23, which was continued during the months of March and June. The proceeds of this cotton was applied as a credit' upon A. M. Weathersbee & Co.’s account.</p> <p>As already stated, on May 19 plaintiffs refused to honor a draft of A. M. Weathersbee & Co., giving them as a reason that they had drawn up to the guaranty (first guaranty), and that plaintiffs did not expect them to draw more until they had sent cotton. If the limit as to amount in the guaranty had referred to any balance due by principal debtors for advances, why should plaintiffs require additional guaranty when the principal debtors drew up to the limit in the first paper ? The plaintiffs by their conduct have construed the original contract to be limited as to amount, and that the advances were to be paid out of cotton shipped them by the principal debtors. •</p> <p>It further appears that on August 31, 1881, one of the firm of A. M. Weathersbee & Co. applied to and obtained from plaintiffs the additional sum of $1,500 in cash, without security, to pay for goods to replenish stock and to move cotton crop. Thereafter plaintiffs continued to make advances, and A. M. Weathersbee & Co. continued to ship cotton to plaintiffs. Plaintiffs contend that this was the contraction of another debt by the firm of A. M. Weathersbee & Co., and that from August 31 the firm (principal debtors) owed them two separate and distinct debts — the one for advances secured by the guaranty, and the other for advances to move the cotton crop. Plaintiffs therefore contend that they had the right to apply proceeds of cotton on hand November 1 to the unsecured advances made to move the crop.</p> <p>The account presented by plaintiffs, however, is one entire running account, including debits and credits blended together. Plaintiffs protest against any inference being drawn from their mode of keeping books. It is the duty of the court to decide a case according to the law applicable to the case as presented. The principle of law is, that in an account current the payments shall be applied to the charges in the order of time in which they accrue. In such cases the debt consists not of the items, but of the balance found to be due after applying credits to debits. Under this principle of law I do not think plaintiffs can invoke the right of application of partial payments to this case.</p> <p>But even - assuming that A. M. Weathersbee & Co. contracted two separate debts, it would admit of doubt whether the money could be considered in the hands of plaintiffs until the cotton had been sold or ordered to be sold. It appears that when A. M. Weathersbee & Co., the principal debtors, on November 21 directed the sale and application of proceeds of cotton to the guaranteed advances, the cotton was then being held subject to order as to time of sale.</p> <p>It was contended that the factor’s lien attached to the cotton in the hands of plaintiffs to the extent of advances to move the crop. Having concluded that it was the intention of the parties at the time of the guaranty that payments by the principal debtors were to be first applied to the guaranteed advances, and that no further advances were contemplated, the factor’s lien cannot be enforced in violation of such contract to the prejudice of the guarantor. I have no doubt, and it is reasonable to suppose, that plaintiffs expected the principal debtors to ship enough cotton to pay the guaranteed debt, as well as the extended credit for advances allowed the principal debtors. Unfortunately for all parties, the short crop of 1881 disappointed any such expectations, and, as already stated, the parties must now stand upon ' their legal rights.</p> <p>It was further insisted that even if the contract of guaranty should be held to limit advances to $8,500, to be paid out of proceeds of cotton, the limit of credit was waived with the knowledge and consent of all parties, so as to include advances to move the crop. One of the plaintiffs testifies that the guarantor told plaintiff at the time that he overlooked and saw that the business of the principal debtors was kept straight. It also appears from the accounts that some of the drafts paid by the plaintiffs were for the benefit of the guarantor. The guarantor testifies that he delivered cotton to the principal debtors, to be shipped plaintiffs to meet the draft of $507.50 at the Bank of Charleston. He further testifies that he looked after the business of the principal debtors to see that the amount for which he endorsed Avas paid, and insisted that they should ship plaintiffs cotton enough for that purpose. Waiver of the items of the contract of guaranty is not alleged in the complaint, nor does the evidence establish the guarantor's liability beyond the terms of his contract upon which he is sued.</p> <p>. The plaintiffs in their complaint allege that certain transactions took place betAveen the principal debtors and the surety to protect the surety from liability as guarantor to plaintiffs. Records of a confession and conveyances from the principal debtor to the surety Avere introduced before the master. The plaintiffs therefore demand that the guarantor should account to them for .value of property of the principal debtors received by the guarantor as indemnity. The guarantor in his ansAver alleges and testifies that he advanced money to the principal debtors to enable them to commence business, and that he took possession of property of the principal debtors under the conveyances aforesaid in payment of Iona fide indebtedness of said principal debtors.</p> <p>The plaintiffs have had an opportunity before the master of interrogating the guarantor as to the character of the transactions between himself and the principal debtors above referred to. If the guarantor has received any of the property of the principal debtors to indemnify him against liability upon his contract of guaranty, he should be required to account therefor to plaintiffs. As the transactions last above referred to Avere between members of a family, about the time that the principal debtors were discovered to be insolvent, and as the guarantor admits he received property of .the principal debtors, plaintiffs, if so advised, should be permitted to require an accounting by the guarantor for the value of the property received by him from the principal debtors to indemnify himjagainst liability upon his guaranty to plaintiffs.</p> <p>As matter OE eact. I. I find from the evidence that there was but one debt between plaintiffs and defendants, as represented by the account current presented by plaintiffs. II. That the amount of advances made by plaintiffs to A. M. Weathers-bee & Co., with interest and commissions, secured by the contract of guaranty of A. J. Weathersbee, dated February 1 and March 26, 1881, have been paid by the principal debtors.</p> <p>As matter OE law. I. I find that the contracts of guaranty signed by A. J. Weathersbee limited the amount of advances to be made by plaintiffs to A. M. Weathersbee & Co. to eight thousand five hundred dollars, with interest and commissions on sales of cotton to be shipped by said firm to plaintiffs as factors, to pay said advances and interest. II. That the defendant, A. J. Weathersbee, is not indebted or liable to plaintiffs upon the contract of guaranty for advances made to the defendants, A. M. Weathersbee & Co.</p> <p>It is ordered, adjudged, and decreed, that plaintiffs have leave to apply to the Court of Common Pleas for Barnwell County for an order requiring the defendant, A. J. Weathersbee, to account for the value of property received from the defendants, A. M. Weathersbee & Co., to indemnify him under the contract of guaranty set forth in plaintiffs’ complaint. Should plaintiffs fail to apply during the next two succeeding terms of the Court of Common Pleas for Barnwell County, after the filing of this decree, for the order herein provided, requiring the defendant, A. J. Weathersbee, to account, it is ordered, adjudged, and decreed, that plaintiffs’ complaint herein be dismissed with costs.</p> <p>The written contracts of guaranty are, by their express and unequivocal terms, limited and not .continuing. Rice, 131. The limitation upon the amounts to be advanced was the consideration which induced A. J. Weathersbee to become guarantor, and was the measure of the liability of the guarantor to the plaintiffs. The contract of a guarantor and surety cannot be enlarged beyond its terms. 17 S. C., 4. A material deviation from the'Contract by a party claiming to enforce it rescinds the contract. 16 S. 0., 271; 14 III., 20; Chit. Cont. (10 Amer. ed-.), 577. The debtor, in the first instance, has the right at the time of payment to direct its application. 1 McMull., 76; 9 S. C., 344; 20 Id., 46. As the plaintiffs at the time of payment held no other debt or claim against the principal debtors, distinct and separate from the account current, to such account alone the payments must necessarily be applicable. In the case of current accounts the successive payments or credits are to be applied to the discharge of the items of debit antecedently due in the order of time in which they stood in the account, which is not to be taken backwards, and the balance struck at the head instead of at the foot of it. Story Bq. Jur., 469 b, et seq. ; 11 Rich., 466. A factor cannot separate his account into independent items and subject these items to different regimens to suit his own interests. Ibid. There can be no application of cotton or other commercial articles of uncertain or fluctuating value to an account until a sale is effected. Payment must necessarily mean money payment. An order to a factor to hold cotton suspends its conversion into money until further orders from shipper, as the factor or commission merchant is only the paid agent of the consignor, and hound to follow the direction of the latter as to the consignments. Dudley, 248. The “time of payment,” referred to by the court in Bell v. Bell, 20 S. C., 47, as the time for the debtor to make the appropriation, has reference to the time when the cotton is properly convertible into a circulating medium. ■ Directions by the debtor, therefore, for application of proceeds should accompany orders to sell. The confession of judgment by A. M. Weathersbee & Co.' to A. J. Weathersbee was partly to indemnify the latter against the contingent liability of his guaranty to plaintiffs, and partly to secure a debt due to himself individually. The contingency did not happen, and never can happen, if the liability of the guarantor is discharged by payment on the part of the principal debtors; hence the plaintiffs have no subrogation to any rights acquired by A. J. Weathersbee under the confession of judgment or under any compromise thereafter made in satisfaction of said judgment.</p>

<p>Before Witherspoon, J., Richland, April, 1885.</p> <p>The opinion states the case.</p>

<p>Before Fraser, J., Charleston, November, 1884.</p> <p>For a history of this case, see the reports of the case upon previous hearings in 8 S. 0., 318, 344; 11 Id., 486; 13 Id., 533; 14 Id., 214; 19 Id., 384. After its last 'hearing in this court the City Council filed a petition praying the Circuit Court to order the receiver of the estate of Joseph Whaley to institute proceedings to test the validity of the judgments obtained by the plaintiffs in the principal case, and others.</p> <p>In the principal case it was referred to T. M. Hanckel, Esq., master, to inquire and report upon the claims of the receiver of the Bank of the State of South Carolina, and leave was given to the legatees of Joseph Whaley to except to all claims against the estate not reduced to judgment. The City Council of Charleston, assignee of these legatees, accordingly excepted.</p> <p>Upon the claim of Ravenel k Co., master Hanckel reported as follows:</p> <p>The first claim examined under the exceptions was the claim of Ravenel & Co. against the estate of Joseph Whaley, for loans and advances made by them in the manner stated in the evidence herewith filed. From that evidence I find that the correct amount of this claim of Ravenel & Co. is ascertained to be the sum of $6,404.13, With interest from January 1,1873; and I find that the amount so ascertained is a valid and subsisting claim of Ravenel k Co. against the estate of Joseph Whaley.</p> <p>Upon the claim of Theodore D. Jervey, No. 2, the master reported as follows:</p> <p>Note of William Whaley for $2,387, dated June 1, 1874, payable ten days after date to Theodore D. Jervey, Esq., or order, with interest after maturity at the rate of one and one-quarter per cent, per month, secured by an assignment to the payee of a certain “stated claim,” alleged to be due to said William Whaley by the estate of Joseph Whaley, for his commissions and for expenses of the last illness of Joseph Whaley, and for judge of probate’s fees, and sundry other “items”; and a statement of said “stated claim” being annexed to said note and therewith filed with this report. There has not been submitted to me, nor can I find in the records of the case, any evidence whatever to show whether or not any commissions were ever earned by William Whaley as the executor of Joseph Whaley, or any sums of money ever advanced by him out of his individual means to pay the expenses of the last illness of Joseph Whaley, or the judge of probate’s fees, or any other items legally due by this estate of Joseph Whaley, or the amounts of such advances; or that upon the accounting between the said William Whaley as executor and the said estate any balance has been found due the said William Whaley for such advances; such accounting being, of course, necessary to establish such claim. I therefore find that there is no evidence whether or not this claim of Theodore D. Jervey, No. 2, is a valid claim against the estate of Joseph Whaley.</p> <p>Upon the claim of G-. L. Buist, the master reported that the note was not produced, and all the other claims he reported to be based upon forged signatures of Joseph Whaley.</p> <p>The Circuit decree was as follows:</p> <p>The above stated case came before me at the fall term of the Court of Common Pleas for Charleston County in 1884. The matters were not heard together, but at the same sitting of the court. The first of the above stated causes comes up on a report of the master, and the second on a petition for an order instructing the receiver to adopt such proceedings as are proper and necessary to test the validity of certain claims presented in this case against the estate of the testator. The City Council of Charleston also filed exceptions to the master’s report, as well as other parties to the proceedings. The purpose of the exceptions filed by the City Council is substantially the same as that sought to be obtained by the petition. The matters will therefore be considered together. The questions raised by the petition, report, and exceptions will more fully appear by reference to them.</p> <p>There is no allegation of any facts which show any ground of invalidity in, or any matter of defence to, any of these claims which have not already been considered by the court in this case, between the petitioners and the creditors, whose claims the court is now asked to order the receiver to contest. This petition refers only to certain creditors who have obtained judgments at law, because all others are now undergoing investigation in this court, according to the practice of the court in such cases, and are passed upon in said report. The claims of those judgment creditors after a long litigation have been established by the Circuit Court, and the judgment of the Circuit Court has been affirmed by the Supreme Court, and this has been done in this ease, in which the petitioner and these judgment creditors are parties, and in which the contest was carried on directly between these parties, each represented by counsel.</p> <p>The receiver, as I understand it, is an indifferent person, who is simply to hold the fund for the parties entitled to it, and has in himself the rights of both parties. As the representative or successor of the deposed executor, he cannot repudiate his acts, unless for fraud or collusion between the executor and the creditor, and which he may do, as for this purpose he will be invested with alb the rights and equities of other creditors or legatees. As the representative of the other creditors and legatees, he ought not to.be allowed to assail these judgments, because their rights have already been passed upon by the court, and the petitioner, as assignee of the legatees, does not now say anything in any manner impeaching them, more than has heretofore been said in this case. It is difficult to conceive what rights of the creditors and legatees can be vested in the receiver in this case, which are not vested in them directly, and which they have not the right and have not had the opportunity in this case to litigate. I do not, therefore, see any propriety in ordering the receiver to institute proceedings as prayed for in the petition.</p> <p>It may be that these judgments are founded on instruments to which the name of the testator, Joseph Whaley, was forged by the executor, who had been deposed. The court has held that it is too late after the rendition of these judgments to raise this question. There is not a single suggestion throughout this long litigation that these creditors are not innocent of any fault in reference to them. Mere legatees are volunteers, and take by the testator’s bounty, and it is presumed were in a much better position to know of the mismanagement of the estate, than the creditors whose means were used by the chosen representative of the testator, their ancestor.</p> <p>The other questions in this case arise on the report of the master, filed November 18, 1884, and exceptions thereto. Whatever may have been the legal effect as amongst the creditors themselves, of certain orders which were made in the cause, before the amendments wore made by which the City Council of Charleston was impleaded as assignee of two of the legatees, and from which no appeal was taken by any of the creditors, all the claims which had not been put into judgment were left open as unadjudicated by the decree of September 18, 1882, as between all parties to the action, and from so much of that decree there has been no appeal. I am inclined to the opinion that the decree was, as to those matters in which it is said to have been modified by the decree of Judge Kershaw; simply administrative and-within his control. If, however, the said decree of September 18, 1882, was as to such matters judicial, the proper way to correct the subsequent ruling was by an appeal to the Supreme Court, and not by application to a Circuit Judge. In either view of the case, I will not go behind the order of Judge Kershaw.</p> <p>Considering, therefore, that all the claims not in judgment were open for investigation before the master, I see no good reason why there should be any new trial before him, or by a jury, which is, in eases like this, a matter of discretion. There is really more evidence that the claim of Ravenel & Co. is founded on a contract made by Joseph Whaley himself than there is outside of the presumptions of law in favor of even those which are in judgment. There is sufficient in the evidence before the master, as to this and all other claims reported on, to justify his conclusions, and I therefore concur in them.</p> <p>It is therefore ordered and adjudged, that the petition of the City Council above referred to be dismissed, the costs to be paid by the petitioner. It is further ordered, that the exceptions to the said report be overruled and the report confirmed. It is further ordered, that the receiver, T. W. Bacot, do proceed to sell, as soon as practicable, the city four per cent, bonds in his hands, and that he apply the proceeds of sale and any other funds in his hands, after deducting his commissions as fixed by the previous orders in this case: First, to the payment of any taxes due the State; second, to the payment of the costs and disbursements of the master and other officers of the court; third, to the following claims established in this case:</p> <p>* * * * * * *</p> <p>Should the funds in the hands of the receiver be insufficient to pay the above claims in full, it is ordered that the receiver do pay them pro rata.</p> <p>From this decree, the City Council of Charleston and the creditors whose claims were rejected appealed; and E. H. Gadsden, administrator, also appealed from so much of the decree as allowed the claim of Ravenel & Co.</p>

<p>Before Pressley, J., Laurens, November, 1884.</p> <p>This was an action by T. R. L. Wood against William A. Reeves and others for foreclosure of a mortgage. The opinion states the case. The Circuit Judge decreed as follows:</p> <p>My judgment on the above facts is that the interest of W. A. Reeves in the estate of his father was neither an interest in land nor in tangible property of any kind. The direction that his property be sold and divided” gave each legatee a purely money interest, which he could assign and transfer, but the record of such assignment in the register’s office is not notice to the purchasers of the land, nor does it give to the holder thereof any lien upon the land which he could foreclose as a mortgage. It is in law only an irrevocable power to receive from the executors the share of W. A. Reeves in the proceeds of testator’s property when sold, and notice thereof comes too late after he had received his share.</p> <p>Furthermore, if said deed be a valid mortgage on property which could be mortgaged, then in that case the record of the same without the proof and the registry thereof, as required by the act of 1839, makes the record ineffectual as constructive notice to a subsequent purchaser. Before that act, it was decided in Lamar v. Raysor, 7 Rich., 509, that legal proof before recording would be presumed ; but not so since that act, which requires, as prerequisite to recording, the affidavit of one of the witnesses, and that same be recorded.</p> <p>It is therefore ordered and adjudged, that plaintiff have leave to enter judgment and issue execution against W. A. Reeves, with interest thereon from commencement of this action, and for costs of this case. Further ordered, that as to all the Other defendants the complaint in this case be dismissed.</p>

<p>Where, in action for partition, the defendant alleged an absolute title in himself, and claimed to hold the land under the statute of limitations, the issues of title raised in the answer should have been placed on calendar 1 for trial by a jury, leaving the question of partition to be afterwards determined by the court. It was error to dismiss the complaint on the ground that the court could not try titles to real estate in a case of partition.</p>

<p>Before Hudson, J., Sumter, February, 1885.</p> <p>' This case is fully stated in the opinion of this court. The evidence ivas all taken in open court, and consisted of the mortgages, the depositions of the members of the firm of E. H. Frost & Co., and the testimony of other witnesses. The Circuit decree was as follows:</p> <p>■ At the trial of this cause, so soon as the plaintiffs.’ counsel had read the complaint and exhibits, the counsel' for. the defendants moved to dismiss the complaint because it did not state facts sufficient to constitute a cause of action, in that creditors of David Morris, without first having obtained judgment at law and exhausted their legal remedies, were invoking the aid of this court on its equity side to relieve them of the consequences of deeds of mortgage given by the said Morris to- certain of his creditors, in alleged preferences fraudulent as to the plaintiffs.</p> <p>It is well established that a creditor must first exhaust his remedy at law before he can invoke the aid of, equity to relieve him against „a fraudulent conveyance of property by a debtor. The only exception to this rule is that contained in section 2016, chapter LXXII., of the General Statutes, which gives to a simple contract creditor, or any creditor who has no judgment, a right to assail on the equity side of the court such an assignment for the benefit of creditors as is set forth in section 2014 of said chapter, without first having reduced his claim to judgment.</p> <p>Now, the term “assignment” in said section has been defined by our Supreme Court, in the late case of Wilks v. Walker (22 S. O., 108), to mean not only the usual formal deed of assignment for the benefit of creditors in its directly technical sense, but any other mode of conveyance or transfer of property which is intended to have the effect of an assignment, and which in truth and fact does operate as such, be the said transfers called by whatsoever name. It must, however, be equivalent or tantamount to the instrument technically called an assignment, and must make, preferences prohibited in section 2014. If the instrument or instruments of conveyance in effect accomplish, and are intended to accomplish, what is inhibited in said act, they are within its purview, whether called an “assignment” eo nomine or not. The court says: “Any other view, it seems to us, would sacrifice substance to mere form, and enable insolvent debtors by evasion to effect a purpose declared by statute to be unlawful.”</p> <p>Now, the motion to dismiss the complaint, commonly called an oral demurrer, and which in this instance is an objection to the jurisdiction of the court for want of equity shown in the complaint, admits the truth of all the allegations of the plaintiffs. An examination of, the complaint shows that it is there in substance and in strong language alleged that the defendant, David Morris, being totally insolvent, and wishing to prefer certain of his creditors to the exclusion of others, and by far the largest in amount, and intending thus to defraud them of their just demands, did make to the said preferred creditors conveyances of all his property of every description for their sole and exclusive benefit; that he did not do this by an instrument technically called an assignment, but resorted to the subterfuge of chattel mortgages of very short maturity, which were accepted by said preferred creditors with a full knowledge of the insolvency of Morris, and his inability to redeem, and with a full knowledge that all his property was thus conveyed.</p> <p>Such in substance are the allegations of the complaint, and the demurrer admits their truth. It is very clear that by such a transaction an assignment for the benefit of certain creditors is made to the exclusion of the great body of his other creditors, and that the attempt is by this mode of conveyance to evade the plain terms of the act. I therefore overrule the demurrer, hold-. ing that under section 2016 of said act they are admitted to assail the transaction without waiting first to recover judgment at law, and obtain a return of nulla bona to an execution, before the possible accomplishment of which the entire stock of goods would have certainly been sold and the proceeds inevitably lost to these plaintiffs.</p> <p>The defendants excepted. The answers were then read and the trial of the cause proceeded. I do not propose to review the testimony. It is sufficient to say that I find as a fact that the. evidence fully sustains all the material allegations of the complaint. The defendant, David Morris, at and before he gave these mortgages on his stock of goods, &c., was clearly insolvent; hopelessly so. He knew it well, and to the defendant creditors he conveyed his entire property, consisting of his stock of goods, &c., and no realty. The mortgages were to mature at a very short day, less than a month. He knew he could not redeem, and did not intend to try to do so, but intended that a sale should take place, and before the maturity of the notes consented in writing that a sale should be made soon after maturity, and without the usual time of advertisement. He further knew that he could not effect this preference by a formal assignment, and deliberately set himself to work to evade the statute by mortgages at short time of maturity. In these transactions he has violated section 2014 of the General Statutes, and the conveyances cannot stand. The invalidity of such an assignment as is contemplated in said statute does not depend upon the fact whether or not the preferred creditor has knowledge of the fraudulent intent of the debtor; the statute declares the assignmcnt invalid, and this is its character regardless of the bona or mala fieles of the preferred creditors.</p> <p>It is therefore ordered, adjudged, and decreed, that the said mortgages assailed in the complaint be set aside as null and void, and that all rights assigned thereunder be vacated and annulled, and that the property seized and so id, or its value, be delivered and paid over to the receiver appointed under these proceedings, by whichsoever of the said mortgagees the same was so taken and sold, viz., Alexander Morris. And it is further ordered, that the plaintiffs in this action who have proved their claims have judgment therefor, and that such of the creditors of said David Morris as have not, be allowed to come forward and establish their claims before the master of this court, who shall call upon them to do so by advertising to that effect in the Sumter Watchman and Southron for the space of two weeks, and that the funds of the said estate be distributed among said creditors as the law directs. The plaintiffs proved their debts, and the same was not questioned by defendants’ counsel.</p> <p>It is further ordered, that it be referred to the master of this court to ascertain and report what would be a reasonable fee to be paid out of the assigned estate to the attorneys for the plaintiffs of record in this cause.</p> <p>I. The only question in this ease is whether or not the mortgages executed by David Morris to his co-defendants constitute an assignment for the benefit of creditors in the sense of the term used in Gen. Stat., § 2014. If there has been no such assignment made by David Morris, then it must follow that his honor, the. Circuit Judge, erred in overruling the demurrer to the complaint. For, notwithstanding the strong language used by the plaintiffs in reference to the fraudulent transfer of their debtors’ property, they ivere not in a position to question such transfers. They came into court as simple contract creditors, and as such they have no standing, except under Gen. Stat., § 2016. A simple contract creditor cannot maintain a bill in equity against his debtor, and the grantee to set aside a fraudulent conveyance of the debtor’s property, even though the debtor be insolvent, and Avithout the aid of the injunction the debt may be lost. He must first proceed at Hay and exhaust his remedy there. 1 S. G., 186, 96 ; 18 Id., 526. Equity has jurisdiction of fraud, but does not collect debt. A creditor must establish his demand at Hay, and obtain a lien upon the property before the transfer interferes Avith his rights, or he has any title to claim relief in equity. .Bump Fr. Oonv., 533-4; Wait Fr. Oonv. 80, 81; High Bee., 277; High Big., 18, 19.</p> <p>II. There was no assignment for the benefit of creditoi’s in this case. An assignment is properly the transfer of one’s Avhole ■interest in any estate; but it is noAV generally appropriated to the transfer of chattels, either real or personal, or of equitable interests. 2 Watk. Corn., 227. The common Hay definition of an assignment is the transferring and setting over to another of some right, title, or interest in things in Avhich a third party, not a party to the assignment, has a concern and interest. 1 Bae. Abr., 329; 2 Bl. Com., 326; Burr. Ass., 3. When it is said of a merchant that he has “made an assignment,” it is understood, not that he has made a transfer of some specific article; or portion of property to this or that particular creditor in payment or as security, but that he has made a general disposition of his property, and suspended his Avhole business in consequence. Burr. Ass., 148,/. note, 1 Paine, 188, 195; 26 Ft., 462, 473.</p> <p>III. A mortgage is not an assignment Avithin the meaning of the act. The distinction is that the latter is an absolute transfer of the debtor’s property to a trustee or assignee for the purpose of being turned into money and applied to the payment of the debts of the assignor; the former is a security for a debt and involves a resultiug interest to the mortgagor. An .assignment is more than a security for the payment of debts; it is an absolute appropriation of property to their payment. Burr. Ass., 12; 21 JV. 7., 574; 20 Id., 15; 13 Iowa, 474; 42 Penn., 441; 41 Cal., 566. It does not create a lien upon the property, which is still regarded in equity as the assignor’s, but under it the whole estate, legal and equitable, passes to the assignee. This distinction is pointed out in, and made the basis of, the folloAving decisions: 4 Watts Serg., 383, 391; 7 Id., 335; 2 Mete., 99; 13 N. II., 298; 25 Id., 155 ; 10 Conn., 280; 26 Vt., 686; 37 Id., 225; 10 Cal, 269; 18 Gf-a., 668; 27 Id., 385; 1 Rand., 306; 3 S. C.,-285.</p> <p>IV. Under a mortgage of personalty the right of property is absolute at law in mortgagee after condition broken. 1 Tread., Con. R., 154. But in equity the ruléis: “Once a mortgage, always a mortgage.” That which was intended as a security shall never be turned into an absolute conveyance. McMull. Eq., 2. Mortgagee has no right to the property until debt is due. 14 S. 0., 162. Mortgagor can enforce his equity of redemption until foreclosure sale. Jones Chat. Mort., § 693. Sale under mortgage must be advertised for fifteen days, unless mortgagor consent, in writing, to a sale in some other mode or on some other notice. Gfen. Stat., § 2348. “The doctrine that a mortgagee can, after breach of condition has occurred, obtain an absolute title, is utterly antagonistic to the nature of a mortgage, and had its origin in the time when a valid mortgage or encumbrance could be made only upon an actual change of possession, and prior to the establishment of the equitable powers of courts.” Rerun. Chat. Mort., 454. In order to get rid of the equity of redemption, the mortgagee must either sell in the manner provided in the mortgage, or in the statute, or under judicial process. Ibid., 453.</p> <p>V. The case at bar is distinguished from Wilks v. Walker, 22 aS'. C., 108. There “the conveyance of the land to Wilks in consideration that he would pay the donor’s debt to the Patterson estate, ivas substantially an assignment for the payment of that debt.” That case was somewhat analogous to the case of Reck cf Co. v. Merrill (26 Vt., 686), where the debtor made an assignment, and also several mortgages of real estate, all executed about the same time. They were treated as one instrument. The like principle was adjudicated in the following cases, viz.: 10 Wise., 443; 8 Iowa, 96; 45 Barb., 317 ; 16 Md., 101; 42 Me., 445 ; 26 Vt., 468. But in the case at bar the instruments executed by the debtor have none of the characteristics of an “assignment.” They are mortgages, pure and simple. Before the act known as the assignment act was passed, a debtor could make a preference among creditor’s in various ways. The mode usually adopted, and which oftentimes resulted in great injustice to some of the parties interested, was by executing a deed of “assignment for the benefit of creditors.” To remedy this evil the act of 1882 was passed. If the statute is not broad enough to afford complete protection, it should be amended by the general assembly, not by the courts. A debtor can give a preference among his creditors by executing a mortgage to one or more of them. Rice Oh., 309 ; 12 S. 0., 154.</p> <p>cited 22 S. 0., 108 ; Gen. Stat., § 2016; 2 Speer, 183; 2 Rich., 80 ; Jones Ohat. Mort., §§ 447, 440.</p>

Before Kershaw, J., Charleston, March, 1884. Upon the point considered and determined by this court, the opinion sufficiently states the case.

Before Wallace, J., Marion, June, 1884. The opinion states the case. The order of Judge Hudson, granting an interlocutory injunction, omitting its statement of the case, was as follows: Under a rule to show cause, the application for a preliminary injunction was heard by me at chambers at Orangeburg, on the 16th day of May instant.

Before Hudson, J., Colleton, November, 1884. The Circuit decree in this case, after reciting the act of incorporation and the pleadings, proceeded as follows: The complaint showing these various matters and things upon its face, in the outset of the hearing a motion was made before me to dismiss the complaint, because it did not contain facts to constitute a cause of action.

Before Kershaw, J., Sumter, October, 1884. The Circuit decree, after stating the conclusions of law quoted in' the opinion of this court, proceeded as follows: My reasons for the foregoing findings and conclusions are as follows: The bond upon which the mortgage herein was founded Avas placed in the hands of the said Charles Mayrant by Judge Fraser, the agent of the said Mark Reynolds, the assignee thereof, for suit.

<p>Before Pressley, J., Spartanburg, October, 1884.</p> <p>The opinion sufficiently states the case.</p>

<p>A will provided as follows: “I will and bequeath unto my children, herein named, after my decease and interment and the payment of all just debts, viz., M., A., E., B., and I., all my estate, real, personal, and all residue, to have, to hold, and to use for their benefit during the single life of M., A., and E., my daughters, and till my sons, B. and I., are of age. I further will and devise that as the within named sons shall become of ago and the daughters marry, their respective interests in possession shall revert to the daughters remaining unmarried, so long as the said unmarried daughters shall choose to remain on the promises. I further will and devise that at the majority or marriage of all the within children named, my property shall be sold and equally divided among all my children and their bodily heirs or living issue of those deceased, if any there be.” Held, that the word “or” in the last sentence was used in the sense of “and,” and that partition could not be demanded while A. resided on the place and remained unmarried.</p>

<p>Before Cothran, J., York, July, 1884.</p> <p>The opinion sufficiently states the case.</p>

<p>Before Fraser, J., Newberry, February, 1884.</p> <p>This was au action by E. P. Chalmers, clerk of the court, ' against L. J. Jones and G. S. Mower. The opinion states the case.</p>

<p>Before Pressley, J., Lexington, February, 1884.</p> <p>The opinion states the case. i</p>

Before Pressley, J., Beaufort, March, 1883. This was an action by Sarah E. Glover and Joseph Dewees ■against W. W. Farr, Edward P. Farr, and C. J. O. Hutson, commenced prior to March, 1880. One of the exceptions upon which the case came to this court was in these words: “Because liis honor held that the court had jurisdiction further in the 'cause.” All other matters are fully stated in the opinion.

Before Kershaw, J., Oconee, November, 1883. This was an action by H. D. A. Biemann against W. B. White for the recovery of a strip of land lying between the old run of Conneross Creek and a ditch cut for said creek. It was commenced September 16, 1881. By consent the issues were heard by the court.

Before Fraser, J., Greenville, July, 1884. The opinion states the case. The Circuit decree was as follows: It is by no means clear that the validity of the order of sale was in any way dependent upon John M. Jones being a trustee. These questions, however, while raised by the exception, were not pressed in the argument of counsel.

Before Fraser, J., Greenville, July, 1884. The case is thus stated by the master: The master, to whom it was referred to take the testimony in the above entitled action and return the same to the court, together Avith his conclusions of fact therefrom, and also his conclusions of laAv, Avith leave to report any special matter, begs leave to report that he has held references and taken the testimony hereAvith filed; and from the same he respectfully submits the following…

Before Wallace, J., Spartanburg, December, 1884. Held: to pass an ordinance for issuing licenses for the sale of spirituous and malt liquors for the year 1885, and that under said ordinance did issue licenses to several persons to sell liquor in the city.

Before Wallace, J., Richland, November, 1884. This was an action by Horace E. Calvo for damages, commenced in February, 1884. The opinion states the case. upon the point decided by the court, cited 18 S. 0., 271, 275; 78 Va., 745; 112 IT.

Before Cothran, J., York, November, 1884. This was an action by John A. Danvin, as administrator of Peyton A. Darwin, who was a boy of seventeen years of age at the time of his death on the leased road of the defendant company. The opinion fully states the case. • 19 III., 499; Shear, Bedf. JYegl, §§ 85, 36, 65, 79; 4 Ind., 97; 10 Mees, f W., 546; 16 Oonn., 421;' 11 East., 60; 9 Ind., 399; 6 Id., 416; 2 Duv. (.Ky.), 114; 3 Ohio St., 195; 18 JY.

Before Hudson, J., Charleston, July, 1884. A statement of the facts of this case will be found in the opinion of this court.

Before Witherspoon, J., Richland, April, 1885. This was an action by Caroline Walters against P. W. Kraft and others, the makers of a joint and several promissory note. The judge refused several requests to charge made by the sureties, and did charge as follows: 1.

<p>Before Wallace, J., Richland, November, 1884.</p> <p>The opinion fully states the case.</p> <p>cited Brandt Sur. £ Guar., ch. XIY.; Ibid., §§ 312, 305; 2 Lead. Cas. Lq. (last edit.), 1912; Pitman Pr. Sur., 174; JDeColl Sur. Guar., 407; 1 Younge Q. Oh., 420; 43 Ind., 396; 50 Id., 377; 37 Ga., 385; 26 III, 286; 30 Vt, 712; 6 Whart., 440; 5 Rich., 51.</p>