Volume 44 — South Carolina Reports

<p>Before Gary, Fraser, and Aldrich, JJ., Richland, July, ■1893, April and July, 1894.</p> <p>Action by Ariana I. Willis, as executrix of George L. Dial, deceased, against Mary A. Tozer, commenced September 4, 1892. The order of Judge Fraser, referred to in the opinion, was as follows:</p> <p>This case came before me at the spring term of the court, held in April, 1894, on an oral demurrer. If the amended complaint does not conform to the order of Judge Gary giving leave to amend, a demurrer is not the mode by which the error may be corrected. There may, perhaps, have been a motion to set aside the amended complaint as not in conformity to the order, and it might have prevailed, whether it was or was not sufficient on demurrer. In the amended complaint we have the following allegations: 1. There was a former action against the defendant as administratrix, in which she pleaded plene administravit. 2. That on this plea there was a judgment in her favor and a judgment against her for $633.08, as administratrix, quando acciderint. 3. That since the rendition of this judgment she has received for the estate of her intestate the sum of $1,060.02. 4. That execution has been issued on the said judgment, and that the sheriff made a return of nulla bona thereto. 5. That the said sum of $1,060.02 is applicable to the plaintiff’s judgment and execution. 6. That the defendant has failed and refused so to apply the same, but has wasted and misappropriated the same.</p> <p>I do not think it important to enter into a review of the authorities on the subject. Chit. PL, p. 361; Wms. Ex’ors, p. 1391. I am not prepared to say that there are no circumstances under which an administrator, situated as the defendant is in this ease, would not be held liable to pay the plaintiff’s judgment out of his own estate, because he has received an amount equal to it since the former judgment quando was rendered. Take a case in which the assets which came to the hands of the administratrix after the judgment quando are destroyed by the act of God or of the public enemy, or, again, where there was such a wholesale destruction of values by the termination of the late civil war; and other eases might suggest themselves. These, however, would be matters to be set up in the answer. I think that the judgment in the former case is at least prima facie an adjudication that there are, or were at the rendition thereof, no debts or other obligations of which the administratrix had notice, which would take precedence of plaintiff’s debt in administration of future assets. On the coming into possession of such assets, they are prima facie applicable to plaintiff’s judgment, and remain so until the contrary is pleaded and shown.</p> <p>It is, therefore, ordered and adjudged, that the demurrer be overruled, and that the defendant have leave to answer within twenty days, if she has not already done so.</p> <p>The motion made before Judge Aldrich for a nonsuit was based upon the following grounds: 1. Because there was a total failure of evidence to show that a judgment had been obtained by the plaintiff against the defendant in her representative capacity in a prior action, wherein the said defendant, by her plea, confession or default, admitted assets, or wherein the said defendant had been found to have assets by the verdict of a jury on and against the plea of plene adminisiravii generally or praeter, or, if the action could be maintained upon the judgment introduced in evidence, then, 2. Because there was a total failure of evidence to show that any assets had been received by the defendant which were applicable to the payment of thesaid judgment. 3. Because there was a total failure of evidence to show that the assets received were applicable to the plaintiff’s judgment, and that the defendant had wasted and misappropriated the said assets; and 4. Because the plaintiff having introduced the original answer of the defendant in evidence, to show that certain assets had been received by the defendant, and such admission being in the same paragraph and in the same sentence qualified and avoided by the averment that the assets received had been duly administered and paid out according to law, and that the said defendant had not in her hands any assets applicable to the claim of plaintiff, such statement should be taken as a whole, and the plaintiff thereby established conclusively the defence interposed by the answer; and the defendant is, therefore, entitled to a j udgment of nonsuit.</p> <p>His honor overruled the motion for nonsuit, saying: In this case I cannot interfere with the force and effect of Judge Gary’s decision on the demurrer interposed by the defendant to the original complaint. He, for reasons satisfactory to himself, sustained that demurrer, and ordered the complaint to be amended. I must accept Judge Gary’s order, and treat it as being the law of this case. The motion before Judge Fraser, as stated by counsel, was to dismiss the amended complaint, and as stated by Judge Fraser in his decree, upon the ground that the complaint did not state facts sufficient to constitute a cause of action. Judge Fraser, in his decision as stated by him (and I presume his decision meant to cover‘the motion made, as stated by defendant’s counsel, to wit: to dismiss the complaint because it did not comply with Judge Fraser’s order), overruled this motion of the defendant, and, therefore, I must accept the complaint as being good in law and stating the cause of action, because Judge Fraser says so, and I am bound by his order in the case; so that the motion now before me is, and necessarily must be, for a nonsuit, upon the ground that the plaintiff has failed to prove his case.</p> <p>In this case, as I understand it, the allegations are, there was a former judgment recovered against the defendant as administratrix by the plaintiff herein. I needn’t go into the details of the pleadings, but that judgment provides that plaintiffs shall have judgment against this defendant as administratrix for a certain amount of money, to levy and issue execution against the assets that might be subsequently received. That, in effect, is the substance of the judgment. Now the present action is against Mary A. Tozer individually, and the purpose is to charge her with assets received subsequent to the recovery of the former judgment, and the motion for nonsuit is on the ground that there is no evidence in support of that allegation, or if there is evidence that she has received money, there is no evidence that she has wasted it. In her answer, and I must take and decide this question not only upon the evidence submitted, but upon the facts as they are admitted in the pleadings; therefore, the motion must be considered with reference to both the pleadings — facts admitted in the answer — and the evidence. For a first defence, the defendant denies each and every allegation of the complaint. Well, the plaintiff puts in evidence the judgment roll to which I have referred, and he puts in evidence the former answer to the original complaint in this case, in which the defendant admits she received certain sums of money, and goes on to say how she applied them, saying they were properly applied, and denies that she owes plaintiff anything. Well, now, the admission of assets received is certainly some evidence of the allegation of the complaint.</p> <p>So that we pass, then, to the question of waste. Is there any evidence that she misapplied it? For that answer we refer to the answer there. In the answer in the present case she states how she applied it; substantially, that she took the money herself, to reimburse herself for debts of the estate that she paid. If she did, I don’t think the admission in either or both of her answers states so clear a defence as to show that it exculpates her from any liability to the plaintiff. If there is any evidence at all, I cannot sustain a nonsuit. She admits having received certain sums of money. There is a nulla bona return from the sheriff, that constitutes some evidence. I am not prepared to say there is no evidence at all in support of the allegations of the complaint, and overrule the motion for a nonsuit.</p> <p>The exceptions to the rulings and charge of Judge Aldrich were as follows:</p> <p>4. For that his honor, Judge Aldrich, erred in holding that the pleadings did not deny and put in issue the appointment of the plaintiff as executrix of the will of George L. Dial.</p> <p>5. For that his honor, Judge Aldrich, erred in admitting in evidence the original answer of the defendant to prove assets received by the defendant, whereas his honor should have held that the complaint and answer having been amended under the order of the court, and the original answer not being verified, and no evidence being offered to show that the said answer had been brought to the attention of the defendant, the same was incompetent as evidence for the purpose indicated, and could not be used as an admission of the defendant.</p> <p>6. For that his honor, Judge Aldrich, erred in refusing defendant’s motion for a nonsuit, whereas his honor should have granted the said motion, on the grounds: (a) Because there was a total failure of evidence to show that a judgment had been obtained by the plaintiff against the defendant in her representative capacity in a prior action, wherein the defendant, by plea, confession or default, admitted assets, or the said defendant had been found to have assets by the verdict of a jury on and against the plea of plene administravit generally or praeter; but if it should be held that the action could be maintained upon a judgment guando, then, (b) Because there was a total failure of evidence to show that any assets had been received by the defendant which were applicable to the payment of the judgment guando in evidence, (c) Because there was a total failure of evidence to show that the defendant had wasted and misappropriated the said assets; and (d) Because the plaintiff having introduced the original answer of the defendant in evidence to show that certain assets had been received by the defendant, and such admission being in the same paragraph and in the same sentence qualified and avoided by the averment that the assets received, had been duly administered and paid out according to law, and that the said defendant had not in her hands any assets applicable to the claim of plaintiff, such statement should be taken as a whole, and the plaintiff thereby established conclusively the defence interposed by the answer, and the defendant is, therefore, entitled to a judgment of nonsuit.</p> <p>7. Because his honor, Judge Aldrich, erred in refusing to allow the defendant to answer the following questions, and in ruling the same to be incompetent and irrelevant: (a) In the administration of the estate of your husband, have you ever paid any debts due by the estate? (b) Mrs. Tozer, have you, in the administration of your husband’s estate, paid out any funds, any assets that came into your hands, or from your own money, debts of the estate, for attorney’s fees or for the administration of the estate? (c) Have you advanced any money; if so, how much? (d) Have you paid any money out of your own pocket, out of your own funds, for any debts of the estate? (e) Have you, since the decree in the former case, paid out of the money received by you on account of this legacy left to your husband by John C. Dial any of the debts incurred by you as administratrix in the administration of that estate? (f) Have you paid out any money out of that money received by. you for attorney’s fees incurred by you in carrying on and in protecting the estate that you are administratrix of? (g) Have you paid out of that money received by you on account of that legacy any debts due by the said estate to the State, such as taxes?</p> <p>8. For that his honor, Judge Aldrich, erred in holding that the defendant having pleaded plene administravit, and suffered judgment guando acciderint to be taken against her in her representative capacity in the former action, she thereby admitted that any assets received after the said judgment would be liable for its payment, and was thereby estopped from saying that such assets, when received, were applied to any other purpose than to the payment of the said judgment, and in thereby holding the said judgment to be a lien on the said assets íd priority over any and all other debts or liabilities of the estate of her said intestate, as well as in priority of her claim to be reimbursed for the necessary expenses of administration made by the said defendant individually, and in anticipation of assets.</p> <p>9. For that his honor, Judge Aldrich, erred in refusing to allow the defendant to amend the second paragraph of her answer to the amended complaint, so as to read, that after the receipt of the said sum of six hundred and sixty-five and 55-100 dollars, the defendant paid out said money for attorney’s fees and in the due administration of the estate.</p> <p>10. For that his honor, Judge Aldrich, erred in holding that the record in the case of Ariana I. Dial, as executrix of the will of George L. Dial, deceased, against Mary A. Tozer, individually and as administratrix of the estate of Richard Tozer, deceased, and others, introduced by the defendant to sustain her plea of another action pending, did not sustain the said plea; and in holding that though the parties to the suit now pending were made parties- to the former suit, they were made parties on a different character, and wholly separate and distinct, and for other purposes, and that, therefore, the said plea in abatement was gone; and in holding further, that in order to sustain the said plea in abatement, the parties plaintiff must be the same, and that in these cases the parties plaintiff were not the same; whereas his honor should have held that the said record showed that the parties in the said causes were substantially the same, and that the same subject-matter was involved in both causes, and that the said plea in abatement was, therefore, good.</p> <p>11. For that his honor, Judge Aldrich, erred in holding that, although due advertisement was made by the defendant as adadministratrix of Eichard Tozer, calling upon all and singular the creditors of the estate of the said Tozer to present and prove their claims against the said estate; and that although the said bond of Francis Arnold — upon which the judgment guando forming the basis of this action was afterwards obtained — -was not presented to the defendant within the time limited by law after the said advertisement, and although this defendant had no notice thereof until on or about the 1st day of December, 1886, this defendant having failed to set these facts up as a defence to the former action, was estopped from availing herself of them.as a defence to this action.</p> <p>12. For that his honor, Judge Aldrich, erred in charging the jury that “the judgment of the court meant (that is to say, the j udgment guando acciderint, which forms the basis of this action,) that she didn’t have the money then as administratrix, but that out of the assets which might afterwards come into her hands she must pay it.”</p> <p>13. Because his honor, Judge Aldrich, erred in charging the jury as follows: “If you are satisfied that she (meaning the defendant) received the money to the extent asked for in the complaint, and failed to pay it on the judgment of the plaintiff, they are entitled to a judgment. In her answer she admits having received the money, and sets up the plea that she applied it to other purposes, which purposes I have had to hold were not justifiable; she had no right to pay it, and the question, therefore, is, is she indebted to the amount — did she receive the money and fail to apply it to the judgment? if she did, your judgment must be for the plaintiff.”</p> <p>14. For that his honor, Judge Aldrich, erred in holding that the original answer of the defendant was evidence to show that the defendant had wasted and misappropriated the assets alleged to have been received.</p>

Before Wallace, J., Pickens, September, 1893. This appeal was heard on May 29, 1894, and in November, was ordered for reargument, which was had on January 9, 1895. It was an action by Caroline Brock and others against W. T. O’Dell and others, commenced April 27, 1892.

<p>Before Aldrich, J., Charleston, March, 1893.</p> <p>Action by G. L. Buist, as receiver, against Alexander Melchers and others, commenced January 24,1893. The complaint was as follows:</p> <p>1. That heretofore, to wit: on or about the 9th day of September, A. D. 1892, in a certain cause depending in this honorable court, to wit: in the Court of Common Pleas for the County of Charleston, in said State, ^entitled E. M. Moreland vs. Assistance Building and Loan Association, the plaintiff herein, G. L. Buist, was duly appointed receiver for said association, and by said court authorized and empowered to ta'ke charge of all and singular the assets of said corporation, and to bring, and continue, if already brought, all actions of any kind and description, and to prosecute the same in such manner as he may be advised by his counsel; and shall, whenever in the judgment of his counsel, or either of them, it be deemed expedient and proper, bring such action or actions against either the president and directors, or any one or more of them, for any alleged charges of negligence or otherwise, for and on behalf of said association, if he be requested so to do. Said G. L. Buist duly entered upon the discharge of his duties as such receiver, having qualified as required by said order, and ever since has been, and is now, the duly appointed receiver of said association, and has brought this action in conformity with the provisions of said order, and as requested so to do.</p> <p>2. That under and by virtue of an act of the legislature of the State of South Carolina, entitled “An act to incorporate the Assistance Building and Loan Association of Charleston,” approved on 21st day of December, A. D. 1882, the Assistance Building and Loan Association was created a body politic and corporate, for the purpose of making loans of money, secured by mortgage on real estate or personal property, or by conveyance of the same to their members and stockholders, the capital stock of said association to consist of two thousand five hundred shares, but as soon as one thousand shares were subscribed, said association to organize and commence operations; said shares to be paid by successive monthly instalments of one dollar on each share.</p> <p>3. By said charter it was'further enacted that said corporation shall have power and authority to make any such rules and by-laws for its government, as are not repugnant to the Constitution and laws of the laud; shall have members and succession of members and officers as shall be ordained and chosen according to their said rules and by-laws made or to be made by them; shall have and keep a common seal, and may alter the same at will; may sue and be sued, plead and be impleaded, in any court of law or equity in this State, and shall have and enjoy all and every right and privilege incident and belonging to corporate bodies according to the laws of the land. •</p> <p>4. By said charter it was further enacted that the funds of said corporation shall be loaned to the members and stockholders upon the security of real and personal estate, and used in the purchase of real .and personal estate for the benefit of its members and stockholders, on such terms and under such conditions and subject to such regulations as may, from time to time, be prescribed by the rules and by-laws of said corporation.</p> <p>5. By said charter it was further enacted that whenever the funds of said corporation shall have accumulated to such an amount that, upon a fair and just valuation thereof, each stockholder and member shall have received, or be entitled to receive, the sum of $200, or property to that value for each and every share of stock by him or her so held, and when such distribution and division of the funds shall have been so made, then this corporation shall cease and determine. All of which provisions of said charter will more fully appear by reference thereto in the 18th vol. Stat. So. Ca., page 5.</p> <p>6. Pursuant to the provisions of the said charter, the Assistance Building and Loan Association was duly organized and commenced operations on or about the 7th day of August, 1883, and made rules and by-laws for its government; a copy of said rules and by-laws are hereto annexed and made a part hereof, and marked “Exhibit A.”</p> <p>7. That during the times hereinafter mentioned, the defendants, Alexander Melchers (president), Daniel Ravenel, Patrick Darcy, Jacob Kruse, J. Orrin Lea, Lee Loeb, A. F. C. Cramer, W. H. Welch, Robert Martin, F. W. Cappelmann, J. Alwyn Ball, and B. Feldmann, were duly elected and qualified directors of said Assistance Building and Loan Association; that is to say, the said Daniel Ravenel, from the organization of said association to November, A. D. 1890; the said J. Orrin Lee, from the organization of said association to the day of September, 1890; the said Lee Loeb, from the day of September, 1890, to the present time; the said J. Alwyn Ball, from the organization of said association to the day of September, 1885; the said Robert Martin, from the day of July, 1891, to the present time; the said F. W. Cappelmann, from the day of January, 1891, to the present time; the said B. Feldmann, from the day of September, 1889, to the present time; the said Alexander Melchers, from the organization of said association to the present time; the said Patrick Darcy, from the organization of said association to the present time; the said Jacob Kruse, from the organization of said association to the present time; the said A. F. C. Cramer, from the organization of said association to the present time; the said W. H. Welch, from the organization of said association to the present time. Said defendants directors, during their said respective terms of office, were charged with all the duties and subject to all the responsibilities attached to said office of directors in said association, under the charter and bylaws of said association and laws of the land.</p> <p>8. That said defendants and each and every of them so carelessly, negligently, wrongfully, and unlawfully, from time to time, performed and omitted to perform the various duties pertaining to their said offices, as directors in said association, as to cause a loss to said association of the sum of $58,000.</p> <p>9. That among the other acts of negligence of defendants which caused the said loss, plaintiff alleges that said defendants, and each and every of them, while in office as directors, failed and neglected to meet statedly on the 7th of each and every month, for the purpose of disposing of the funds and attending to the financial affairs of the corpoi’ation, as required by the by-laws of said association. Said defendants directors, while in office as aforesaid, also failed and neglected to’ hold on the fourth days after the monthly meetings, the special and other meetings, for the consideration of the securities offered for the loans of the funds of said association, as required by the by-laws of said association. Said defendants directors also failed and neglected, from time to time while in office as aforesaid, to inspect the books and accounts of the said association, and to audit the same, as required by law and by the by-laws of said association. Said defendants directors, while in office as aforesaid, failed and neglected to have the annual statements properly audited by three members of the corporation, as required by the bylaws of said association. Said defendants directors, while in office as aforesaid, failed and neglected to have orders on the treasurer of said association sanctioned by a majority of the board of directors, as required by the by-laws of said association. Said defendants directors, while in office as aforesaid, failed and neglected to appoint a suitable and proper person as treasurer of said association, and failed and neglected to require said treasurer to give a proper and sufficient bond to said association, as required by the by-laws of said association. Said defendants directors, while in office as aforesaid, allowed the funds of said association from time to time to accumulate in the hands of the treasurer of said association, instead of lending or distributing the same among the stockholders, as required by the charter and by-laws of said association. Said defendants directors, while in office as aforesaid, made, reported, and published annual statements for the stockholders of said association, purporting to show the condition of the affairs of said association, which statements were incorrect, misleading, and misrepresented the actual condition of said association. Said defendants directors, while in office as aforesaid, accepted, without verification by vouchers, incorrect and false statements from the treasurer of said association. Said defendants directors from time to time certified and represented that large sums of money, aggregating in the total the sum of $67,272, had been expended by them in the purchase and retirement of stock of said association, when in fact no such sum or sums was or could have been so expended; failed and neglected to verify alleged purchases of stock reported by the treasurer, by calling for the production of the certificates of stock so alleged to have been purchased, and ascertaining that the same was purchased and properly cancelled; allowed members of said association tobe in arrears many months for their monthly dues, without enforcing the fines, forfeitures, sales, and penalties, required by the by-laws of the association; did not verify the cash balance reported to the credit of said association by its treasurer; allowed securities of said association to be surrendered without receiving adequate compensation therefor. By reason of the said several acts of negligence on the part of each and every of the said directors, defendants herein, the said association has sustained a loss of $58,000, for which said defendants are jointly and severally liable.</p> <p>10. In said action so brought by E. M. Moreland against the Assistance Building and Loan Association, it was alleged in the complaint and admitted in the answer of said association, filed by its attorneys, Messrs. Mordecai & Gadsden (which answer was sworn to by the defendant herein, Alexander Melchers, as president of said association), that on information and belief about $50,000, funds of said association, had been misappropriated by its treasurer, B. F. Burnham, and used for other purposes than those of the association; that it would be necessary to continue the operations of said association for about forty-five months, from the 1st day of August, 1892, to replace said loss; that said association owned no assets, except a small amouut of cash and the official bond of said treasurer, in the penal sum of $5,000, which bond was alleged to be in litigation and contested, and the bonds and mortgages or other collaterals of borrowing members of said association, which said bonds, mortgages, and collaterals were so alleged and admitted as assets, notwithstanding the allegation and admission in said complaint and answer that said association should have wound up and dissolved on the 1st day of August, 1892, and notwithstanding the fact that the said funds so alleged to be misappropriated, were lost to said association through the negligence of defendants herein, the president and directors thereof, the restoration of which sum by said defendants, president and directors, would have enabled said association to wind up its affairs prior to said 1st day of August, 1892, without the further collection of any monthly dues from the stockholders of said association, and without the foreclosure of mortgages or sales of collaterals belonging to any of said stockholders.</p> <p>11. That although the alleged defalcation of the treasurer of said association was ascertained by, and the alleged insolvency of said association was known to, the board of directors of said association, on 25th day of March, 1892, yet the defendant’s directors failed to notify the stockholders of the fact, until the 30th day of June, A. D. 1892, when the defendant, Alexander Melchers, as president of said Assistance Building and Loan Association, called a conference of the stockholders of said association, at Harmony Circle Hall, in the city of Charleston, at which conference plaintiff alleges on information and belief, the defendants, Alexander Melchers, A. F. C. Cramer, Lee Loeb, P. Darcy, F. W. Cappelmann, and B. Feldmann, were present; at said conference the announcement was made for the first time to the stockholders of said association, that said association was hopelessly insolvent, and had, at the instance of the defendants directors, been placed in the hands of receivers, one of whom was the defendant director, Lee Loeb, and that the directors of said association made no resistance to an order of injunction restraining the association and its stockholders from enforcing the provisions of its charter and by-laws. At said conference, questions were put to the defendants directors who were present by stockholders in relation to the affairs of the association, the answers to which questions revealed the fact that said defendants were totally ignorant of the condition of said association; they not even being able to give the income of said association approximately for any given month or year. The defendant, Lee Loeb, then and there stated, that of the 1,250 shares which had composed the association up to August 1st, 1891, there had been bought by the association 519 shares; that since August, 1891, and up to April, 1892, some shareholders representing 109 shares, had bought themselves out of the association at 108 months, received satisfaction of their bonds and mortgages, and had their shares cancelled; that there were outstanding 293 shares unborrowed on, and 330 shares borrowed on. Subsequently, on the 9th day of July, 1892, J. H. Loeb, acting secretary of the association, and subsequently clerk for said receivers of said association, who preceded plaintiff herein, furnished the information that there were 623 shares outstanding, 330 borrowed on, 293 unborrowed on, and also furnished a statement of the names of the stockholders, and the number of shares held by each, a true memorandum of which statement is hereto annexed as a part hereof, marked exhibit “B.” Said statement was made, or claimed to have been made, from an examination of the books of said association, made for plaintiff’s predecessors in office and for the use and benefit of said association, and said services and examination were paid for out of the funds of said association. Said statement so furnished is at variance and irreconcilable with, and contradictory to, the annual statements published by the defendants directors, as will appear by said annual statements, copies of which are hereto annexed and made a part hereof, reference to which is prayed, and marked exhibits C, D, E, F, Cf, H, I, K.</p> <p>12. Plaintiff alleges, that on or about the ' day of December, 1887, the Guaranty or Surety Company, which had up to that date been upon the official bond of B. F. Burnham, treasurer of said association, withdrew therefrom. That an examination of the books, accounts, and vouchers was then made by the defendants directors, who reported the same in good order and correct, and thereupon B. A. Muckenfuss qualified as surety upon the said treasurer’s bond in lieu and stead of said surety company; that said official bond is only in the penal sum of five thousand dollars, a sum totally inadequate to meet the losses sustained through the negligence of the defendants, as hereinbefore alleged. Plaintiff herein has instituted a suit upon said bond against the principal and surety thereon, the said R. F. Burnham, and the said B. A. Muckenfuss, but the said R. F. Burnham is insolvent, and all liability thereon is contested by the defendants in said suit. Even if said sum of $5,000 be recovered in said suit, it will not replace the loss caused to said association through the negligence of defendants by the sum of $53,000. Plaiutff further alleges, that suits have been instituted by him upon bonds and for the foreclosure of mortgages against the borrowing members of said association, but the order appointing this plaintiff receiver expressly provides that no decree in such suits shall be carried into effect until there shall be a decision of the Supreme Court in a test case, brought to determine whether there be any further liability whatever to plaintiff on the part of the said borrowing-members. And plaintiff alleges, that the liability of defendants herein is to plaintiff acting for all the members of said association, borrowers as well as non-borrowers, and is a primary liability to that of the borrowing members (if any such liability there be), and if the liability of defendants herein be speedily enforced, it will put an end to said suits against the borrowers, and avoid the necessity of all questions as to the respective liabilities of the members of said association, the one to the other.</p> <p>13. Plaintiff alleges that the said association is insolvent, the only assets now in existence, and the property of said asso-' ciation, being the sum of $826.96, in cash in the hands of this plaintiff, and the said official bond of the treasurer, now in suit and contested as hereinbefore alleged; and that there are outstanding and unsatified about 293 shares of stock unborrowed on, upon which there is now due by said association to the holders thereof the sum of $43,950, with interest thereon from the 7th day of March, 1892, upon which date said association should have wound up and dissolved.</p> <p>14. Plaintiff alleges that said several acts of negligence of said defendants herein were committed and omitted, notwithstanding that said defendants were more than once notified and matters were brought to their attention, and dissatisfaction expressed to them on the part of certain stockholders as to the condition of the affairs of said association, all of which should and ought to have produced such action upon their part as would have averted a large part of the loss so sustained through their negligence.</p> <p>Wherefore, plaintiff prays judgment against said defendants in the sum of fifty-eight thousand dollars, with interest and costs.</p> <p>The separate answers of the several defendants were the same, except as to their term of service. That of Alex. Melchers was as follows:</p> <p>The defendant, answering the complaint herein, says:</p> <p>I. That he denies each and every allegation in said complaint contained, not hereinafter specifically admitted.</p> <p>II. He admits the allegations of the complaint as stated in thel., II., III., IV., V., and VI. paragraphs thereof, and denies the allegations contained in theVIII., IX.,X.,XI., XII., XIII., and XIV. paragraphs thereof; and answering the VII. paragraph of said complaint, this defendant admits that he was elected a director of said association at the time of the organization thereof, and that he served as such up to about the 12th day of March, 1892; but as to all the other allegations contained in said paragraph, except as herein admitted, he denies any knowledge or information sufficient to form a belief, and prays strict proof thereof.</p> <p>III. And further answering the complaint, this defendant says: That it appears upon the face of the complaint that the alleged causes of action therein set forth, did not arise within six years previous to the commencement of this action.</p> <p>IV. For a further defence, this defendant says: That none of the causes of action alleged in the said complaint accrued within six years before the commencement of this action.</p> <p>V. And for a further defence, this defendant says: That the plaintiff ought not to be permitted to allege, as in said complaint complained, because that even if said loss was caused to said association, as therein alleged, the same was caused by the wrongful act of an agent or officer of the said corporation, for whose acts, if causing loss or damage, each stockholder in said association must bear his proportionate share; and further, because it appears from the complaint and the exhibits filed therewith and made part thereof, that whatever the wrongful act or acts of any such person may have been, the same was the wrongful act or acts of the corporation itself, committed by it through its committee of stockholders duly appointed, and for which this defendant is not liable.</p> <p>VI. For a further defence, this defendant says: That if the sum of $50,000 of the funds of the association, or any part thereof, was misappropriated by its treasurer, as alleged in the complaint, or if any other sum or sums of money were lost to the association, as in the complaint alleged, each and every of such losses accruing to the association were occasioned by the association itself, or contributed to it through its own negligence and wrongful acts, from time to time, as appears from the reports of its several committees of stockholders, duly appointed, which reports are among the exhibits of said complaint and made part thereof.</p> <p>VIL And this defendant, for a further defence, says: That actions are now pending in this honorable court to recover from the borrowing members of the said Assistance Building and Loan Association, the sums of money respectively due by them, amounting in the aggregate to the sum of about $30,000, the same being secured by bonds and mortgages of real estate and other collaterals, the sales of which are being sought to be enforced in this honorable court, so that the respective proceeds of such sales shall be applied towards the payment of the respective sums due upon said bond, which, when so collected, will constitute assets of the said corporation applicable to the settlement and liquidation, of its corporate affairs.</p> <p>VIII. That there is also pending in this court another action against the said Robert F. Burnham and Benjamin A. Muckenfuss to recover $5,000 for the breach of the official bond of the said Robert F. Burnham, another asset of said corporation.</p> <p>IX. That there is still another action pending in this honorable court against the Paragon Building and Loan Association, a body corporate, for an accounting, and to recover a sum of money, exceeding the sum of $10,000, another asset of the Assistance Building and Loan Association, reference to which said three pending actions brought by the receiver, as above stated, is craved.</p> <p>And, therefore, this defendant says that this action has been prematurely brought, and could only be properly brought after the conclusion of all of said three actions, as until then it cannot be known whether there will or will not be any deficiency, or how much, if any, wherewith to charge this defendant and his codefendants herein, even if such deficiency could be properly chargeable against them, or any of them, which this defendant denies. Wherefore, this defendant asks that the complaint herein be dismissed with costs.</p> <p>The order of transfer was as follows:</p> <p>This case was placed for trial by the plaintiff’s attorneys on Calendar 1, at the present term of this court, and on the call of that calendar the defendants’ attorneys moved to transfer the same to Calendar 2 as the proper calendar, claiming that the pleadings showed that the case was an equity case, and should, therefore, be placed upon Calendar 2. After carefully reading and examining the complaint, and after hearing argument of counsel, the court having come to the conclusion that the case is an equity case, and should be disposed of as such: Now, on motion of Messrs. Mordecai & Gadsden, Asher D. Cohen, J. N. Nathans, John C. Millar, J. Ancrum Simons, Simons, Siegling&Cappelmann,W. Henry Thomas, and Huger Sinkler, after hearing Messrs. Fitzsimons & Moffett and Henry E. Young for the plaintiffs, it is ordered, that this case be, and is hereby, transferred from Calendar 1 to Calendar 2.</p> <p>Plaintiff’s exceptions to this order were as follows:</p> <p>The Circuit Judge erred in transferring this action from Calendar 1 to Calendar 2, by his order made herein on 14th day of March, 1893: 1. Because it is error to deny the right of trial by jury in an action for damages. 2. Because it is error not to place a case involving issues of law and fact upon Calendar 1. 3. Because the Circuit Judge erred in holding that “the case is an equity case, and should be disposed of as such.” 4. Because the issues of fact in au action for the recovery of money only must be tried by a jury.</p> <p>The order sustaining the oral demurrer was as follows:</p> <p>This cause having béen by order of court transferred from Calendar 1 to Calendar 2, upon motion of defendants’ attorneys, and said cause having come on for hearing on the 23d day of March, 1893, before his honor, Judge Aldrich, and an oral demurrer to the complaint herein having been interposed by the defendants, upon the ground that the complaint does not state facts sufficient to constitute a cause of action; after full argument, it is, on motion of H. E. Young and Fitzsimons & Moffett, plaintiff’s attorneys, ordered that said demurrer be, and the same is hereby, overruled; and the defendants having given notice of intention to appeal, it is ordered, that this action be stayed till the determination of said appeal.</p> <p>Defendants’ exceptions were as follows:</p> <p>1. That whilst it is true that the complaint alleges that the defendant directors named in the seventh paragraph of the complaint, for and during their said respective terms of office, were charged with all the duties and subject to all the responsibilities attached to said office of directors in said association under the charter and by-laws of said association and laws of the land; and whilst it further states in the eighth paragraph of the complaint that the said defendants, and each and every of them, so carelessly, negligently, wrongfully, and unlawfully from time to time performed and omitted to perform the various duties pertaining to their said office as directors in said association as to cause a loss to said association of the sum of $58,000; and whilst in the ninth paragraph of the complaint it sets out many different alleged acts of such negligence, by reason of which acts of negligence on the part of each and every one of said directors, the association sustained a loss of $58,000, for which said defendants are jointly and severally liable; yet the complaint fails to state the time or times at which any of such alleged acts of negligence by omission or commission occurred, and further failed to state any directors or set of directors who were serving as such when any act or acts of negligence occurred. In other words, whilst acts of negligence are alleged and damages flowing therefrom are charged, and all parties who ever were directors from first to last are named, the failure to state the time or times of the alleged acts of negligence, and who were the directors when such acts of negligence occurred, makes it impossible for any proper judgment to be rendered against the directors who would be liable for such acts of negligence, if any, but in fact charges that every director named from the beginning to the last is jointly and severally liable, and demands judgment against all, although one or more of them may not at the time have been a director of the association.</p> <p>2. That the action is based upon the primary liability of the directors; whereas it is respectfully submitted that their liability, if any, is secondary, sounding in damages which can only be recovered after all the assets -of the association have been exhausted and actual loss thus adjudicated, whilst the complaint herein shows upon its face the pendency of suits for the recovery of outstanding assets sufficient to pay any loss alleged to have been suffered from the negligence of the defendants.</p> <p>3. That the exhibits filed with the complaint, and made part and parcel thereof, show upon their face that every act of omission or of commission, alleged as negligence of the directors, had been in pursuance of the constitution and by-laws of the association from time to time regularly passed upon, confirmed, and ratified by the association itself.</p> <p>4. That all the annual statements of the secretary and treasurer, complained of as false, had been regularly approved, ratified, and confirmed by the association itself, as provided by its constitution and by-laws; that these are part of the complaint, and that the corporation, and consequently its representative, the receiver, is estopped from disputing the same; that this action is professedly brought in behalf of the non-borrowing as well as the borrowing stockholders, the object being to relieve borrowing stockholders from any further performance of their contract, seeking to substitute the liability of the directors in discharge of the same. Whereas it is respectfully submitted that inasmuch as at the annual meetings aforesaid all acts and doings of the secretary and treasurer, by reason of which it is sought to charge the defendants, were from time to time audited and confirmed by the association itself, the borrowing members, if any right they had to be relieved from their contract, and to throw any loss upon the directors, they, the borrowing members, are estopped from complaining of the correctness of such statements, and must perform their contract, the performance of which, as shown by the complaint itself, would result in the establishment of no loss to the association and no liability on the part of its directors, even if they had been guilty of such acts of negligence, and if damage had resulted therefrom.</p> <p>5. That under section 4 of article Y. of the constitution of said association, the directors were required to order a full state•ment of its affairs to be annually prepared at least seven days before the annual general meetings of the association, at which meeting such statement shall be submitted after having been first audited and signed by three members of the corporation selected by the board; and by article X. of said constitution, such statement is directed to be made by the secretary and treasurer, and that such annual statements, filed as exhibits to the complaint in this action, and made a part and parcel thereof, show upon their face that every act of omission or commission, alleged as negligence of the directors, had, in pursuance of said constitution, been passed upon and confirmed by the society itself, and that the accounts of the secretary and treasurer were, from time to time, as shown by the exhibits to the complaint, duly audited and confirmed and signed by three members of the association, and approved and ratified by the association itself; and in consequence thereof, the board of directors are neither jointly nor severally responsible therefor. The eighteenth annual statement shows $91,750.14, over twice enough to pay the indebtedness alleged in the thirteenth paragraph of the complaint of $43,950.</p>

Before Watts, J., Laurens, July, 1894. Appeal by Spragins, Buck & Co., and other creditors, in the case of J. & H. Mann & Co., against J. T. Poole and others.

Before Norton, J., Barnwell, March, 1894. Action of foreclosure by the New England Mortgage Security Company against Martha A. Baxley and her junior mortgage creditors. The Circuit decree was as follows: This is an action for the foreclosure of a mortgage of real estate, and was begun on 19th October, 1891, and came on to be heard by me at the March term, 1894, for Barnwell County.

Before Gary, J., Lancaster, January, 1894. Action by W. J. Cunningham and others against Lewis J. Oauthen, administrator of A. J. Kibler, deceased. See former decision in 37 S. C., at page 123.

<p>1. Petition eor Rehearing. — After opinion filed, and before remittitur sent down, the Supreme Court has the right to grant a rehearing, and reconsider its judgment on the facts.</p> <p>2. Ibid. — On rehearing had, error in Circuit decree in reversing probate decree as to parties who had not appealed, manifest on the record, and a transfer of interest disclosed to this court at the first hearing, but both overlooked in the opinion filed, corrected, and protected.</p> <p>3. Ibid. — The ruling of this court at the former hearing as to the admissibility of parol testimony where there was a writing, and as to certain matters of fact, reaffirmed.</p>

<p>Before Watts, J., York, April, 1894.</p> <p>Action by City Council of Greenville againt G. C. Ormand, survivor of Ormand & Goforth, and their sureties, commenced August 15, 1893. Defendants appealed.</p>

<p>Before Watts, J., York, April, 1894.</p> <p>Action by City Council of Greenville against Ormand & Go-forth, and their sureties, commenced August 15, 1893. Defendants appealed.</p>

Before Aldrich, J., Charleston, March, 1893. This was an action by G. L. Buist, as receiver of the Assistance Building and Loan Association, against Daniel Bryan. The complaint was as follows: 1.

Before Fraser, J., Bichland, April, 1894. Three actions by G. L. Buist, receiver, against C. Fitzsimons.

<p>Before Aldrich, J., Charleston, March, 1893.</p> <p>Action by G. L. Buist, receiver, against Anna M. Salvo. Defendant appealed.</p>

Before Townsend, J., Barnwell, July, 1894. Two actions, one by William Ashley, a lunatic^ and his committee, L. A. Ashley, against W. A. Holman and W. A. Bailey, executors of William Ashley, deceased, and his legatees, commenced June 22,1892, and the other action was by the executors of William Ashley, deceased, against L. A. Ashley, committee, and others.

<p>Before Gary, J., Greenville, July, 1894.</p> <p>Action by John B. Parks against the City Council of Green-ville and others.</p>

<p>Before Norton, J., Florence, June, 1894.</p> <p>Appeal by B. McLendon, sheriff, from order requiring him to execute title deed to G. W. Williams, assignee of the bid made by Kuker, the plaintiff, at a foreclosure sale in the case of Kuker v. Perry.</p>

<p>Before Witherspoon, J., Hampton, October, 1894.</p> <p>Action by Armstrong, Cator & Co. against M. O. Brant, commenced in June, 1894.</p>

Before Watts, J., Chester, March, 1894. Action by Benjamin B. Porter and others against Bobert W. Strieker and others.

Before Witherspoon, J., Richland, April, 1893. Action by Charles W. McCreery against J. Henry Davis for specific performance, commenced February 3, 1893. From a decree dismissing the complaint, the plaintiff appealed on the following grounds: 1. Because his honor held that, “according to the uniform decisions of the courts of this State, marriage has been adjudged to be a civil contract.” 2.

Before Townsend, J., Charleston, March, 1894. Action by John S. Fairly against Wappoo Mills. The complaint was as follows: The plaintiff, complaining of the defendant, alleges as follows: Mrst. Held: after argument on argument, that this was a tax for the purpose of raising revenue. State v. Hayne, 4 S. C., 403; State v. Columbia, 6 Id., 1; Charleston v. Oliver, 16 S. C., 50, and 21 Id., 325; In re Jager, 29 Id., 444.

This was an original application to this court for injunction, M. C. Butler being the petitioner, and W. H. Ellerbe, comptroller general, and W. T. C. Bates, State treasurer, being the respondents.

Before Gary, J., Abbeville, June, 1894. In this case, Hon. D. A. Townsend, Judge of the Seventh Circuit, sat in the place of Mr. Justice Gary, who had been of counsel in the cause. It was an action by C. Aultman & Co. against Caroline B. Salinas, G. Edward Salinas, and Anthony J. Salinas, partners ás A. J. Salinas & Sons. For former appeals see 34 S. G., 559, and 41 Id., 304.

<p>Before Buchanan, J., Abbeville, January, 1895.</p> <p>In this case Hon. Joseph H. Earle, Judge of the Eighth Circuit, sat in the place of Mr. Justice Gary, who had been of counsel in the case. It was an action by Jane Estelle Clink-scales, assignee of T. L. Clinksoales, jr., mortgagee, against A. J. Clinksoales and T. L. Clinksoales, jr., to recover the chattels described in a mortgage given by J. P. Clinksoales to T. L. Clinksoales, jr., and by him assigned to plaintiff, the possession of these chattels having been afterwards taken possession of by the defendant. The answer alleged the death of J. P. Clink-scales before action brought, and the testimony showed that the defendant, A. J. Clinksoales, was his executor. One ground of defence was, that J. P. Clinksoales had, by his will, given certain property to his wife, the plaintiff, on condition that she would not claim any of the property covered by the mortgage which had been assigned to her, and a receipt for this legacy signed by plaintiff, w7as offered in evidence.</p> <p>After action commenced, Jane E. Clinksoales died, and the action was continued in the name of E. B. Norris, her executor.</p>

This was a petition by W. J. Jones to this court in its original jurisdiction, for an injunction to restrain the city of Camden and its mayor and aldermen from issuing certain bonds.

<p>Before Aldrich, J., Laurens, February, 1895.</p> <p>Indictment against Wash Owens for murder, alleged to have been committed on November 3, 1893.</p>

Before Buchanan, J., Anderson, February, 1895. Indictment against Jasper N. Rhodes and others, for the burning of a gin house, on November 18, 1894; and from a conviction and sentence, Rhodes alone appealed.

Before Norton, J., Clarendon, June, 1894. Indictment against J. B. Gaymon'for perjury.

<p>1. Requisition — Appeal.—Exceptions.—On appeal from an order refusing to discharge a prisoner held under a mandate from the governor of this State on a requisition from the governor of another State, exceptions are too general'to require consideration where the errors alleged are that the warrant is insufficient in law, the same not being in compliance with the Constitution and laws of the United States and of this State, and that no proper requisition had been made by the governor of the demanding State.</p> <p>2. Ibid. — Requisites oe Mandate. — The law does not require that the mandate to deliver for removal should recite those requirements of the act of Congress which justify the governor in issuing it.</p>

<p>Before Watts, J., Abbeville, October, 1894.</p> <p>Indictment against Allen Chiles for the murder of his wife in July, 1894. He was convicted of manslaughter and appealed.</p>

<p>Before Buchanan, J., Abbeville, January, 1895.</p> <p>Indictment against Walter Derrick for the murder of Sam Bobinson.</p>

Before Watts, J., Greenville, November, 1894. Appeal by the city council of Greenville from an order of the Circuit Court reducing the fine which had been imposed by the mayor of Greenville on said Eichelberger for the violation of a city ordinance.

Before Aldrich, J., Spartanburg, January, 1895. Appeal by John Wallace from a conviction for larceny. That portion of the charge upon which the 4th and 5th exceptions are based, was in full as follows: In regard to this man’s character, why that is very often put in testimony, and in doubtful cases it is entitled to the weight that a jury sees fit to give it. But, gentlemen, after all, it is better, with the definitions of law that I have given you, to leave it to the jury.

<p>Before Gary, J., Charleston, December, 1894.</p> <p>Appeal by the State in the case of State v. Rufus Larkins.</p>

Before Norton, J., Chesterfield, September, 1894. Action by William J. Johnson against J. Henry Johnson and others, commenced on June 20, 1892. The Circuit decree, omitting its statement of the pleadings (which is less full than that of the opinion) was as follows: The issue as to the title depends upon whether there was or was not a delivery of the deed mentioned by Wm. K. Johnson to Queen Ann Johnson.

<p>This was an original application to this court for injunction.</p>

<p>Before Aldbioh, J., Union, March, 1895.</p> <p>Action by John L. Young against Philip M. Cohen. See 42 S. C., 328.</p>

Before Fraser, J., Newberry, November, 1894. In this ease the Honorable Ernest Gary, Judge of the Fifth Circuit, sat in the stead of Mr. Justice Pope, who had been of counsel as to matters involved in this cause. It was an action by Frances D. Brown against George D. Brown and Lucinda O. Moseley, commenced October 7, 1892.

<p>1. A Circuit Judge at His Chambers, Outside oe the Circuit in which the matter depends, has no jurisdiction to hear, without consent, a return to a rule to show cause, and grant an order setting aside a judgment by default, even though the order for the rule to show cause was granted in the Circuit. Would consent give jurisdiction ?</p>

Before Norton, J., Chesterfield, September, 1894. Action by Eveline Quick and Mary A. Quick, in her own right and as administratrix of Mary C. Ruthven, deceased, against Allan Campbell and others, commenced in February, 1892, for partition, accounting, and general relief.

<p>1. Chattel Mortgage — Demand for Payment — Forfeiture—Case Criticised. — The demand by mortgagee on mortgagor, after condition broken in chattel mortgage, for payment of the debt, is not a waiver of the forfeiture, and does not revest title in the mortgagor. State v. Rice, (4) 43 S. 0., 204, approved.</p>

<p>Before Watts, J., Abbeville, December, 1894.</p> <p>Action for claim and delivery by Sam Wallingford and Louis H. Bussell, partnérs as Wallingford & Bussell, against A. M. Aiken.</p>

Before Fraser, J., Spartanburg, October, 1894. In these cases, Mr. Justice Pope did not sit on account of sickness on the day of the hearing. • They were two cases— Elizabeth Hammett and others, as executors of C. B. Hammett, deceased, against Agnes Brown, and the same plaintiffs against Sarah A. Chaffin — the two being on substantially identical instruments of writing. The complaint in the Brown case was as follows: I. For the first cause of action: 1.

Before Norton, J., Marion, October, 1894. Action by W. A. Wall, as sheriff of Marion County, against S. E. McMillan and M. I. McMillan, executors ofW. C. McMillan, to foreclose a mortgage given to plaintiff by said W. C. McMillan. Under order of the Supreme Court, who declined to hear an appeal until the heirs and devisees of W. C. McMillan were made parties, these persons were made defendants.

<p>Before Fraser, J., Richland, April, 1894.</p> <p>Action by Edward McCrady against Allen Jones and T. C. Robertson, as Jones & Robertson, commenced February 1,1893.</p>

Before Fraser, J., Richland, April, 1894. Action by P. H. Haltiwanger, as administrator of Theodore Windhorn, deceased, against Amanda J. Windhorn and others, commenced October 5, 1891. The circuit decree was follows: This case was heard by me at the term of the court in April, 1894. The action was brought by the plaintiff as administrator, for the settlement of the estate of Theodore Windhorn, deceased, against Amanda J. Windhorn and others.

<p>Before Gary, J., Greenville, July, 1894.</p> <p>Action by Annie Stokes, widow of William A. Stokes, against George A. Norwood, for dower, commenced February 21,1894.</p>

<p>Before Benet, J., Lexington, September, 1894.</p> <p>Action by Harriet I. Benjamin against Sarah Drafts, Polly O. Meetze, and W. J. Assmann.</p>

Before Fraser, J., Spartanburg, October, 1894. Mr. Justice Pope being too unwell to sit at the hearing of this appeal, be took no part in the decision. It was an action by Cora Gideon against the Enoree Manufacturing Company, commenced June 21,1893, to recover damages for injuries received by her on February 7, 1891, resulting in the loss of her forefinger. From an order of nonsuit, plaintiff appealed.

Before Watts, J., Greenville, November, 1894. Action by L. A. and T. H. Brock against Southern Bailway Company and J. F. Burgiss. From an order of interpleader, obtained by the railway company, the plaintiffs appealed, alleging error to the Circuit Judge in his order upon six grounds: “1.

Before Watts, J., Greenville, November, 1894. Action by R. Y. Hellams against Delia A. Patton, commenced October 6,1894.

Before Buchanan, J., Abbeville, March, 1895. This was a proceeding instituted on January 5, 1895, by B. F. Morris, under section 1938 of Revised Statutes, to eject J. F. Palmer from certain lands. The judgment of R. E. Cox, Esq., the trial justice, in favor of the respondent was brought in review before the Circuit Judge under a writ of certiorari.

Before Norton, J., Berkeley, October, 1894. This was a proceeding for mandamus in the name of the State on the relation of James Gy Gibbes (who was purchaser at a tax sale) against J. B. Morrison, as sheriff of Berkeley County, commenced January 31, 1893. To an alternative writ the respondent made return, and the Circuit Judge refused the writ and dismissed the proceeding.

<p>Before Witherspoon, J., Barnwell, November, 1894.</p> <p>Action by the American Freehold Laud Mortgage Company of London, Limited, against Bessie C. Felder aud others, commenced September 29, 1893, to foreclose a mortgage given by Bessie C. Felder to plaintiff on September 10, 1884. The Circuit decree was as follows:</p> <p>This is an action by plaintiff to foreclose a mortgage of real estate, executed September lOlh, 1884, to plaintiff by the defendant, Bessie C. Felder, a married woman. The defendant, Bessie O. Felder, and her husband, the defendant, N. Z. Felder, allege in their answer that the money secured by the mortgage was borrowed from plaintiff for the use of N. Z. Felder, the husband; that it had no reference to the separate estate of Bessie C. Felder, and that plaintiff at the time of the loan had notice that N. Z. Felder, the husband, was borrowing the money for his own use. The defendant, Jane S. Counts, has gone into possession of a portion of the premises embraced in plaintiff’s mortgage since the execution of said mortgage.</p> <p>The case was heard upon the pleadings, the testimony taken and reported by the master, and upon the argument of counsel: It appears that John B. Palmer & Son, of Columbia, represented the plaintiffs in loaning money in this State secured by mortgage of real estate. Robert Aldrich, Esq., represented Palmer & Son as their local agent at Barnwell, S. C. On the 20th of June, 1884, Hutson & Co., of Aiken, S. C., forwarded to Palmer & Son, at Columbia, the written application of the defendants, Bessie C. Felder and N. Z. Felder, signed in the order named, for a loan of $500, to be secured by a mortgage of the real estate of Bessie O. Felder. Bessie C. Felder is represented in said application as the borrower. In a letter accompanying said application to Palmer & Son for their consideration Hutson & Co. represented Bessie C. Felder as the applicant for the loan, and they recommended the loan as a first class risk.</p> <p>On the 10th September, 1884, Bessie C. Felder and N. Z. Felder, in the order named, signed four notes of $125 each, payable to plaintiffs in one, two, three, and four years, with interest at the rate of ten per cent., payable semi-annually. On the same day Bessie C. Felder executed and delivered to the plaintiffs the mortgage of her real estate, as stated in the complaint. Two of the notes secured by the mortgage, with interest to November 1st, 1890, have been paid, and the allegation of the complaint that the other two notes are due and owing to plaintiff, with interest from November 1st, 1890, is not denied. It is admitted that the notes signed by Bessie C. Felder and N. Z. Felder, and that the mortgage executed by Bessie C. Felder, are in the-handwriting of Robert Aldrich, Esq. The amount loaned by plaintiffs was transmitted by Palmer & Son by drafts, payable to the order of Robert Aldrich, attorney, and by him made payable to the order of Bessie C. Felder. The name of Mrs. Bessie C. Felder is endorsed on each of said drafts. Bessie C. Felder testifies that her husband, N. Z. Felder, negotiated for the loan; that she had no communication directly or indirectly with plaintiff or with an3^ of plaintiff’s agents with reference to the loan; that her husband used the money received from plaintiff for his own use, and that she did not receive any portion of the money. She admits that she knew that her land was being mortgaged for her husband’s use.</p> <p>There is no controversy as to the fact that the defendant, Bessie C. Felder, was at the date of the execution of the mortgage and that she is now the wife of the defendant, N. Z. Felder, or as to the execution of the notes and mortgage as alleged in the complaint. There is no doubt about the loan being negotiated by N. Z. Felder with the knowledge and application of his wife, Bessie C. Felder. The maiu point of controversy is whether N. Z. Felder, the husband, did notify Robert Aldrich, Esq., as plaintiff’s agent, pending the negotiations for the loan, that the money was being borrowed for his use upon the security of his wife’s real estate; and if so, whether such notice invalidates the mortgage and notes referred to in the complaint, so far as they affect the liability of Bessie C. Felder. N. Z. Felder testifies that he made a verbal application to Col. Aldrich, at Barnwell, for the loan; that he told Col. Aldrich at the time that he wanted to borrow $500, and that he would give him a mortgage bn his wife’s estate. Col. Aldrich will not deny the statement of N. Z. Felder, that he applied to him for the loan, but does not think that he did. According to his distinct recollection, the first time he saw Mr. Felder about the loan was when the papers were executed. The testimony of N. Z. Felder as to the notice given Col. Aldrich is positive. Ool. Aldrich in his testimony does not deny that Mr. Felder told him that he was borrowing the money for his own use, and would give a mortgage on his wife’s estate. He, evidently, does not think so, but his want of recollection is not sufficient to overcome the otherwise uncontradicted statement of N. Z. Felder on this point.</p> <p>According to the testimony as reported by the master, I must find as matter of fact, that N. Z. Felder did notify Col. Aldrich before the papers were executed that he was borrowing the money for his own use, and would secure the loan by a mortgage of his wife’s real estate. According to the uncontradicted testimony of Bessie C. Felder and N. Z. Felder, I must also find as matter of fact that the money borrowed from the plaintiff by N. Z. Felder w'as used for his own benefit.</p> <p>Was the notice to Robert Aldrich as to the purpose of the loan notice to the plaintiff? Col. Aldrich was the local agent of John B. Palmer & Son at Barnwell, who represented plaintiff in making loans in this State, secured by mortgage. Col. Aldrich drew the notes and mortgage referred to in complaint. He superintended the execution of the papers signed by Bessie O. Felder and N. Z. Felder. The draft by John B. Palmer & Son, representing the amount loaned, was made payable to his order, and by him endorsed payable to the order of Bessie C. Felder, and under the authority of the cases of Salinas v. Turner, 33 S. C., 231. and Bates v. American &e. Company, 37 S. C., 88, I must conclude that notice to Col. Aldrich of the purpose of the loan was notice to the plaintiff. The plaintiff having had notice that the money about to be borrowed on the security of the wife’s separate estate was to used by the husband for his own purposes, and it appearing that the money borrowed was so used, I conclude that the mortgage executed by the defendant, Bessie C. Felder, is null and void, and that she isnotliable bn the note executed by her secured by said mortgage.</p> <p>Plaintiff appealed on the following grounds: I. That his honor erred, as it is respectfully submitted, in finding as a matter of fact “that N. Z. Felder did notify Col. Aldrich before the papers were executed that he was borrowing the money for his own use, and would secure the loan by a mortgage of his wife’s real estate,” and should have found that said N. Z. Felder’s testimony is shown to have been totally incorrect in this: He testified that he made the application for the loan to Aldrich, when the proof is that the application was made through Hut-son & Co., of Aiken. He testified that the application was a verbal one, when the proof is it was in writing, and his testimony in cross-examination shows that his recollection of the entire transaction was unreliable. II. That his honor erred, as it is respectfully submitted, in finding as follows: “The testimony of N. Z. Felder as to the notice given Col. Aldrich is positive. Col. Aldrich, in his testimony, does not deny that Mr. Felder told him that he was borrowing the money for his own use, and would give a mortgage on his wife’s real estate,” and should have found that while Aldrich did not use the word “deny,” yet the uncontradicted documentary evidence in the case proves, Felder’s testimony, that he applied to Aldrich for the loan, and then told him he was borrowing the money for his own use, to be untrue, as he did not make the application for the loan through Aldrich, but through Hutson So Co., of Aiken. III. That his honor erred, as it is respectfully submitted, in finding that “Aldrich was the local agent of John B. Palmer So Son at Barnwell, who represented the plaintiff in making loans in this State,” and concluding therefrom that notice to Aldrich was notice to plaintiff, and should have found as the Supreme Court decided in the case of Cauglmum v. Smith, 5 S. E. Rep., 363, in a case exactly like this. IY. That his honor erred as a matter of law, as it is respectfully submitted, in holding that the authorities of Salinas v. Turner, 33 S. C., and Bates v. American &e. Co., 37 S. C., are conclusive of this case, when the facts of these cases are totally different in their essential features from the facts of this case. Y. That his honor erred, as a matter of law, as it is respectfully submitted, in concluding “that the mortgage executed by the defendant, Bessie -C. Felder, is null and void.”</p>

<p>Before Gary, J., Colleton, February, 1895.</p> <p>This was an action by S. E. Marshall & Co., a partnership in liquidation, against Allen Creel, commenced in October, 1893.</p>

Before Gary, J., Beaufort, February, 1895. Action by Albert Tindall against Justin McCarthy, commenced December 3, 1894. Plaintiff being asked on the witness stand from whom he got the lighter mentioned in the complaint, replied: “It used to belong to F. W. Schepper; he hired her to me; I gave my note for it; I was responsible.”

Before Withebspoon, J., Williamsburg, February, 1895. Proceeding by Ervin M. Smith, under section 434 of the Code of Procedure, to obtain from J. Zuill McConnell the office of judge of probate. Decree'was for defendant, and plaintiff appealed.

Before Townsend, J., Beaufort, June, 1894. These were two appeals, involving the sum of $11.15 each, in the cases of D. W. Crocker against J. W. Collins, as intendant, and others, and The State ex rel. W. H. Bartless et al., against the town council of Beaufort. Plaintiffs appealed.

Before Townsend, J., Sumter, October, 1894. Action by G. W. Brown, B. F. Brown, and Julia A. Bracy, against Emily S. McCall and others. The circuit decree, omitting the statement of facts repeated in the opinion, was as follows: There is no contention about the interest that the Brown children took.

Before Fraser, J., Spartanburg, July, 1894. Action by W. M. Jones against the Spartanburg Herald Company, commenced in December, 1893. The complaint was as follows: The plaintiff, complaining of the defendant in the above case, alleges: 1. That the defendant is a corporation, duly chartered under the laws of this State by an act of the General Assembly, entitled “An act to incorporate the Spartanburg Herald Company,” approved December 26, A. D. 1884. 2.

Before Fraser, J., Spartanburg, July, 1894: Action by W. M. Jones against J. O. Garlington on the following complaint: ■ The plaintiff, complaining of the defendant in the above stated case, alleges: 1.

Before Benet, J., Richland, October, 1894. Action by Jacob Groesbeck against J. Q. Marshall, on a promissory note, commenced February 24, 1894. The two exhibits referred to in the opinion were as follows: “Exhibit B. Columbia, 31st July, 1890. Received from J. Q. Marshall $600, and his note for $1,187.50, payable on the 1st day of October, 1890, in full settlement of all demands of Bowen F. Wise and John Strow against J. Foster Marshall.

<p>Before Norton, J., Darlington, October, 1894.</p> <p>Action by Sarah C. Yann against Thomas E. Howie, for the recovery of a tract of land, commenced February 24,1894.</p>

<p>Before Aldrich, J., Richland, July, 1894.</p> <p>Action by Mathew Scates and others, heirs at law of Mamie Scates, against Willie Henderson, for the recovery of a city lot, commenced February 9,1894.</p>

This was a motion, notice of which was served on attorney for appellant, the nature of which is fully explained by the following order of April 24, 1895,

<p>Motion to reinstate appeal, upon which the following ruling and order was made May 16, 1895,</p>