Volume 47 — South Carolina Reports

<p>Appeal — Reinstatement. —</p>

Defendant, Hiram Jeter, indicted and convicted of arson.. Motion in arrest of judgment, refused. Defendant appeals. cite on first point: Bish. on Crim. Law, sec. 81, et seq.; 1 Arch. Cr. PI. & Pr., 267; State v. Henderson, 1 Rich., 184; State y. May, 1 Brev., 160; State v. CP Brannon, 1 Bail., 144; State v. Evans, 18 S. C., 138; State v. Shirer, 20 S. C., 408. On second: State v. Lmighlin, 8 Jones Law (N. C.); 2 Am. & Eng. Ency.

The defendant, Charles Arnold, was indicted and convicted of murder for shooting George Merryweather, and, upon recommendation to mercy, was sentenced to life imprisonment in State penitentiary. Defendant appeals, on following exceptions: 1.

Action by Edwin M. Lipscomb on debt against Maner L. 'Rice. Warrant of attachment was levied on property of Rice at instance of plaintiff upon the ground that he was disposing of his property with intent to defraud his creditors. Upon motion of defendant, attachment was vacated.

Indictment agáinst Aleck Richardson, Andy Thompson, and Sanford Howser, for murder. Richardson and Thompson were convicted of manslaughter.

Indictment against F. M. Butler and F. M. Fowler for maintaining a nuisance. The defendants were found guilty, sentenced, and appealed. cite on first point: Green. Ev. (15 ed.), sec. 451; Dispensary Daw, 1894, sec. 1; Black on Intoxicating Diquors, 381; Dispensary Daw, 1896. On second: Const., 1895, art. 5, sec. 26. filed no argument.

Action by James Jesse Spires, minor, by guardian ad litem, against South Bound Railroad Company, for damages to his person. Nonsuit granted. Plaintiff appeals. cite Kaminitsky v. R. R., 25 S. C., 53; Am. & Fng. Ency. of Raw, vol. 4, p. 910; Mttrray v. A. C. R. R., 10 Rich.

Motion at chambers by J. B. Foreman to set aside judgment obtained against him by W. H. Turner by default. Motion granted. Plaintiff appeals. cites Code, sec. 195; Dimer v. Malone, 24 S. C., ; Gillam v. Arnold., 35 S. C., ; Croker v. Allen, 34 S. C., ; Prince v. Dickson, 39 S. C., ; Charles v. Jacobs, 5 S. C., 348; Clawson v. Hutchison, 14 S. C., ; Code, 402. cite Code, secs. 402, 273; 2 Rap.

The defendant, S. F. Fullmore, was convicted before a trial justice of receiving stolen goods, and appealed to the Court of Sessions. After argument, the Judge, on 25th of January, signed the following order: It is ordered, that the appeal be sustained and the case dismissed, it appearing to the Court that there is a total want of evidence tending to show that the goods alleged in the indictment to have been stolen were stolen.

Action by Ira B. Jones and P. Y. Williams, partners practicing law, against John H. Fitzpatrick, as guardian of Mary Kibler, to recover a fee for foreclosure suit.

Action by O. A. Bowen against Jesse W. Stribling, for $234.40, amount alleged to be due him for lumber had and taken by defendant, more than his share, from a saw mill run by them. The defendant denies that he has received more than his share of the lumber, and avers that the plaintiff is indebted to him in the sum of $130.38 for lumber, for which he has not accounted. The other facts are stated in the opinion.

Action by W. I. Dawkins and Hyland P. Stewart, receivers of D. B. Stewart Co., against C. H. Mathis, to recover a subscription to capital stock of the company. The following is the order of Judge Buchanan, upon motion of defendant to dismiss the complaint: ■ This case came on to be heard before me and a jury empanelled at the November, 1895, term.

John Martin was indicted for the murder of Peter Polite, found guilt}7, and recommended to the mercy of the Court. Prom a sentence to life imprisonment the defendant appeals. cite State v. Addy, 28 S. C., 4. cites: Corpus Delicti: State v. Bennett, 40 S. C., 308; King v. Bennett, 4 Bam. & Aid., 95, 6 E. C. K, 404; Campbell v. People, 42 N. E. R., 126; McCullough v. State, 48 Ind., 109; State v. Williams, 7 Jones, N. C., 446; Williams v. Com., 29 Pa. St., 102.

The defendant, Robert W. Potterfield, was convicted of selling liquor without a license, and sentenced to pay a fine of $100, or to three months imprisonment. Erom this judgment the defendant appeals. cite: Const. 1868, art. 3, sec. 3; Dispensary Act of 1894; Bac. Ab., vol. 7, pp. 231, 326; sec. 8, art. 1, Const. U. S.; Gibbons v. Ogden, 9 Wheaton, p. 182, et seq.; W. U. T. Co. v. Pendleton, 122 U. S., pp. 347, 359; N. O. Gas Light Co. v. La.

<p>Action by B. F. Avery & Sons, Tabb & Jenkins Hardware Co., Wm. A. Tottle and James W. Ramsey,' partners, etc., as Wm. A. Tottle & Co., The Hazzard Powder Co., Simmons Hardware Co., Standard Oil Co., and Supplee Hardware Co., against W. B. Wilson, Jr., (as assignee of John Gelzer,) John Gelzer, Julius J. Wescoat, Benjamin Greig, John V. McNamee and Paul W. Sanders, partners, etc., as Marshall, Wescoat & Co., and John R. Ancrum.</p> <p>■ The following is so much of the Circuit decree as is necessary to understand the questions involved:</p> <p>From all the evidence I conclude as matter of fact:</p> <p>1. That John Gelzer was a resident of Charleston County, State of South Carolina, when he gave the mortgage to J. J. Wescoat, trustee, on the 17th day of August, A. D. 1892, and had been a resident of said county of Charleston continuously for about ten years prior to the date of the execution of said mortgage. John Gelzer was insolvent when he executed this mortgage, and he knew it, and in the light of all the testimony, I am constrained to find that J. J. Wescoat was also, at the date of the execution of this mortgage, aware of John Gelzer’s insolvency. The mortgage was taken in the sum of $700, when, according to the testimony of J. J. Wescoat himself, only the sum of $300 was advanced to Gelzer to enable him to buy the claim of his partner, Jenkins, in the business of Jenkins & Gelzer, and I find as a fact that the said mortgage was taken for $400 in excess of the true amount of money loaned to Gelzer. This mortgage covered the entire tangible property of John Gelzer, has never been recorded in Charleston County, and was not recorded in York County until the 10th day of January, A. D. 1894. After maturity of the mortgage, the mortgagor was allowed to retain and use the mortgaged property as his own, and thereby to deceive his creditors into selling him goods they otherwise would not have done. The real reason for not recording the mortgage sooner, I find, was an understanding between the mortgagor and the mortgagee to that effect, in the form of a request from the mortgagor and an acquiescence on the part of the mortgagee.</p> <p>2. At the date of the execution of the mortgage by John Gelzer to John T. Ancrum on the 1st day of September, 1892, Gelzer was insolvent, and a resident of Charleston, in the county of Charleston, S. C., and had been continuously prior to said date for a period of nearly ten years. The mortgage covered the entire tangible propert)' of John Gelzer, has never' been recorded in Charleston County, and was not recorded in York County until the 31st day of January, 1894. The money for which this mortgage was given was actually advanced át the time of its execution, and I am not satisfied that John L,. Ancrum was then aware of the insolvency of Gelzer. He was, undoubtedly, careless and negligent about making proper inquiry into the financial condition of John Gelzer, and allowed Gelzer to induce him to agree to withhold the mortgage from record. One of the motives that induced Ancrum to enter into an agreement with Gelzer not to record the mortgage appears on the face of the mortgage itself, wherein it was provided that John Gelzer “is to continue his present business of buying, selling, and delivering goods to the purchasers thereof, provided that the sales, moneys, notes, accounts, and dioses in action given in payment of said goods, shall be held by John Gelzer as trustee for the said John T- Ancrum.” With this arrangement, Ancrum became careless and indifferent as to the rights of others, and by failing to record, and permitting Gelzer to remain in possession of the stock of goods and to hold them out to the world as his own, from September 1st, 1892, to January 31st, 1894, when he recorded the mortgage in an improper county, shows that he felt no concern about having enabled Gelzer to deceive the plaintiffs into becoming his creditors.</p> <p>3. On the 21st day of January, 1893, when John Gelzer executed the mortgage in the sum of $2,000 to the Savings Bank of Rock Hill, S. C., he possessed nothing in the world but his stock of goods at Rock Hill. Gelzer himself swore: “I,had everything I possessed then in my store at Rock Hill.” The mortgage, as marter of fact, covered his entire property, and was intended not only to operate as security for such advances as the bank might make, but knowing himself to be insolvent, John Gelzer, by means of this mortgage, which became due only one day after its date, intended to prefer the savings bank, in a manner forbidden by law. He intended to evade the assignment law of the State of South Carolina, by the device of a mortgage, thereby hoping to accomplish by this means what he could not possibly do by a formal deed of assignment. The officers of the bank swear that they were not aware of Gelzer’s insolvency. They are truthful and reliable gentlemen, and I must accept what they say as the truth, but the testimony forces me to the conclusion that they should have known of his insolvency, and had reasonable cause to believe that he was insolvent. There was sufficient evidence in their possession, considering Gelzer’s proximity to them and the claims they had against him for collection through their bank, to put them on their guard and to invoke inquiry, which would have disclosed to them Gelzer’s insolvency. There are also additional circumstances surrounding this mortgage which should have sounded the alarm in the ears of the officers of the bank; the mortgage matured in one day — that is, the bank was put in a position to step in at once and seize the mortgaged property, if a crash came in Gelzer’s affairs. The mortgage was withheld from record for nearly one year, and in the meantime Gelzer was suffered to use the mortgaged goods as his own, and by holding them out to the world as his unencumbered property, to obtain credit upon them, and to deceive and defraud each of the plaintiffs to this action into becoming his creditors, which they would not have otherwise done. Gelzer requested the officers of the bank not to record the mortgage; he particularly desired it to be withheld from record, because he desired to hold out to the world that the goods were his own, free of encumbrance, and thereby get credit from others who would know nothing of the mortgage. The bank acquiesced in this, and thereby enabled Gelzer to deceive and defraud the plaintiffs and his other unsecured creditors to the aggregate amount of $9,000. Another significant act on the part of the bank was the conduct of its cashier, Mr. J. M. Cherry, on the 5th day of January, 1894. On the 2d day of January, 1894, one of the plaintiffs wrote to the cashier, inquiring into the financial condition, responsibility, and character of John Gelzer; on the 5th day of said month and year, the cashier replied to said letter: “Mr. G. is an energetic, live young business man; has a very nice hardware store, and has been doing a very nice business, considering the times. On account of the dull trade he is asking indulgence on some of his paper at present.” On the very day that the bank rendered this report of John Gelzer, in which the mortgaged indebtedness to the bank was studiously suppressed, the bank caused the two mortgages executed by Gelzer to the bank, aggregating the sum of $5,100, to be recorded in the office of the register of mesne conveyance for York County. Bven at this late date the bank was willing to allow Gelzer to still hold himself out to the world as the owner of the stock of goods in his possession, and to obtain further credit on the strength of such appearances. Knowing, however, that the inquiring creditor would, no doubt, act upon his report, the cashier deemed it prudent to record the mortgages he-was careful not to mention in his report of the condition of Gelzer. That secrecy, deep and profound, was the object of both the bank and John Gelzer, when both of the -mortgages by Gelzer to the bank were executed, is apparent from the fact that, although J. M. Cherry represented the bank on both occasions, and was the officer to whom the mortgage when signed and sealed was delivered, he was also the sole and only subscribing witness to each of said mortgages.</p> <p>4. All that has been said and found concerning the mortgage to the bank dated January 21st, 1893, is of equal application to the mortgage to the said savings bank dated December 2d, 1893. All the facts found concerning the motives and the intentions of the said bank and Gelzer appear with emphasized force and clearness in this latter transaction. On the 2d day of December, A. D. 1893, when John Gelzer executed the mortgage to the Savings Bank of Rock Hill, S. C., in the sum of $3,100, ostensibly to secure notes, mostly past due, aggregating said amount, he possessed no other property but his stock of goods. This mortgage, therefore, like the previous one dated January 21st, 1893, covered the entire property of John Gelzer. John Gelzer being insolvent from some time before the 17th. day of August, 1892, had become hopelessly insolvent on the 2d day of December, 1893, and clearly saw that there was no hope for him, although, by means of representations made in his letters to his creditors, written shortly before and about this time, he had induced them to accept his worthless notes in settlement of their claims, and thus, for a time, tided over the inevitable crash. All this time John Gelzer was preparing to prefer the bank in some manner that he hoped would not be obnoxious to the laws of this State. Accordingly, on the 2d day of December, 1893, he executed to the Savings Bank of Rock Hill, S. C., not a renewal mortgage, but an additional mortgage, in the sum of $3,100. Thus, while John Gelzer never did owe the bank but $3,100, he executed two mortgages, aggregating $5,100, which was $2,000 more than the true amount the bank could possibly claim. The bank retained both of the mortgages. The mortgage executed on the 2d day of December, 1893, in the sum of $3,100, was not intended as a renewal of the original mortgage in the sum of $2,000, dated the 21st day of January, 1893, but was made by Gelzer, and received by the bank, as an additional mortgage.</p> <p>Next follows the two crowning acts of forbidden preference — one by the Savings Bank of Rock Hill, S. C., and the other by Gelzer. One, the spreading of these two mortgages on the records of York County for public inspection, on the 5th day of January, 1894, with a deceptive state-, ment on their face as to the amount actually due on them; and the other, the execution by Gelzer of the deed of assignment for the benefit of creditors, on the 8th day of February, 1894, only sixty-eight days from the date of the execution of the last mortgage, on the 2d day of December, 1893, On the 7th day of February, 1894, the day immediately preceding the execution of the deed of assignment, Gelzer made a payment to the Savings Bank of Rock Hill in the sum of $565, which was credited on his mortgage debt, and on the 8th day of February, 1894, the same day on which his deed of assignment was executed, Gelzer paid on the mortgage debt of John R. Ancrum, through Wilson & Wilson, the latter’s attorneys, the sum of $215 — thus to the very last moment endeavoring to give substance to the preferences he intended to give said mortgagees from the moment that each of the mortgages was executed.</p> <p>5. At the time of the execution of the several mortgages to J. J. Wescoat, trustee, John R. Ancrum, and the two mortgages to the Savings Bank of Rock Hill, S. C., on the 17th day of August, 1892, 1st day of September, 1892, 21st day of January, 1893, and the 2d day of December, 1893, respectively, John Gelzer was insolvent, and each of the said mortgagees either knew, or had good reason to know, that he was insolvent, and each of these transactions were had and made'in pursuance of an original design and intent of the said John Gelzer and each of the mortagees above mentioned, determined on by them at the inception of each transaction, to transfer and assign all of the tangible property of the said John Gelzer to the said mortgagees, to the exclusion of all the other creditors of the said John Gelzer.</p> <p>6. The conduct of all the mortgagees shows that they, ' each and every one of them, colluded with the mortgagor; that they used the indebtedness of John Gelzer to themselves to draw up notes (in the instances of -J. J. Wescoat, trustee, and of the savings hank, for more than the true amounts), and mortgages that were intended not as security, pure and simple, for the repayment of the money due by John Gelzer, but also for the ulterior purpose of benefiting John Gelzer, who, pursuant to the original scheme, was to continue in possession of the stock of goods after maturity; to continue to do business just as if no mortgages were in existence; to hold out the stock of goods to the world as his own property, and thereby to obtain a corresponding credit. John Gelzer, in effect, made the following proposition to each of the mortgagees: “I will give you a preference, and will assign to you all of my tangible property, provided you will allow me to have the use of it indefinitely, or until I can pay off the debt.” Each of the mortgagees assented to this proposition, and did suffer Gelzer to remain in possession of the stock of merchandise, which constituted the whole of his tangible property, indefinitely, to hold out the said stock to the world as his own propertj', and do business at his old stand and in his own name, and for his own benefit, until a few days preceding the execution of the formal deed of assignment, on the 8th of February, 1894. The conduct of all the mortgagees, as thus shown, deceived plaintiffs, misled them, and caused them to extend credit to John Gelzer, which they would otherwise not have done.</p> <p>7. At the date of the execution of the formal deed of assignment by Gelzer, on the 8th day of February, 1894, Gelzer’s assets consisted of his stock of merchandise at Rock Hill, S. C., of the value, according to the estimates of experts and sworn appraisers, of $6,637, and some accounts of doubtful value, which accounts, by reason of the stipulations in the mortgage to John R. Ancrum, had to be held in trust by Gelzer for Ancrum. His total liabilities amounted to $13,500, and of this amount $4,500 represented his mortgage indebtedness to J. J. Wescoat, trustee, John R. Ancrum, and the Savings Bank of Rock Hill, leaving a balance amounting to $9,000, representing the amount of his indebtedness to liis unsecured creditors. The notes and accounts above mentioned were estimated by Gelzer to be worth from $700 to $1,000; but the assignee had failed to realize on them, when he testified in November; and I find that said accounts are not worth the estimate placed upon them by Gelzer, and are of doubtful value.</p> <p>As a matter of law, I find: That the mortgages executed by John Gelzer to J. J. Wescoat, trustee, on the 17th day of August, 1892, and a mortgage executed by him to John Iy. Ancrum on the first day of September, 1892, in the sum of $1,500, having each been made and delivered while John Gelzer was a resident of Charleston County, in - this State, and having never been recorded in said county of Charleston, as required by law, each of said mortgages are, as to the plaintiffs in this action and all other subsequent credit-tor and purchasers without notice, null and void, and of none effect. Gen. Statutes S. C. (1882), secs. 1776 and 2346; Gen. Statutes S. C. (1893), sec. 1968; Gregory v. Diicker, 31 S. C., 141; London v. Yotmians, Idem, 141.</p> <p>It was contended before me by the defendants that the plaintiff, the Tabb & Jenkins Hardware Company, were affected with notice of these two mortgages, and the affidavit of Charles T. Jenkins, representative of said company, and the deposition of said Jenkins made in this cause, were relied upon as furnishing the proof. I have critically examined both papers, and find both barren of any evidence of notice to take the place of registration. Such notice must be full, explicit, and clearly proven. City Coimcil v. Page, Speer Eq., 211 — 212; London v. Youmans, 31 S. C., 151.</p> <p>The communications of Gelzer to Jenkins, the representative of the aforesaid corporation, furnished ample grounds for basing an attachment upon Gelzer’s stock of merchandise, as the Supreme Court of this State has held. Tabb & Jenkins Hardware Co. v. John Geiser, 21st S. E. Reporter, 261. But they are lacking in every essential to constitute such notice as would take the place of registration of the mortgages in the proper county. Each of the said mortgages are clearly obnoxious to the Statutes of Elizabeth; both of them, by force of the stipulations in them contained, became after maturity bills of sale at the option of the mortgagees. After the conditions were broken, each of the mortgagees were empowered to take the stock of merchandise into their respective possession, as his own proper goods and chattels and for his own benefit, henceforth and forever. Nevertheless, the mortgagor was suffered by each of said mortgagees to remain in possession of the mortgaged chattels (the stock of merchandise) for considerably more than one year, holding out the stock to the world as his own property.</p> <p>The invalidity of the mortgages was dependent upon the fact whether the retention of possession of the stock of merchandise, after breach of condition, was for the benefit of the mortgagor, or the price of preference given to the mortgagees. Having found as a matter of fact that the mortgages were executed not as security, pure and simple, but for the ulterior purpose of benefiting John Gelzer, they are, as to the plaintiffs in this action, null and void. Pregnatt & Bro. v. Miller & Kelley, 21 S. C., 391; Yoitngersi. Massey , 39 S. C., 119 — 121; Smith v. Henry, 1 Hill, 16; Gist v. Pressley, 2 Hill’s Ch., 328; Maples v. Maples, Rice’s Ch., 310; Bank v. Gourdin, Speer’s Eq., 439; Lowry v. Pinson, 2 Bailey, 328.</p> <p>As an additional ground why the Statute of Elizabeth is fatal to the mortgage executed to J. J. Wescoat, trustee, it must be borne in mind that this mortgage was taken for $400 in excess of the true amount of money loaned to Gelzer bjr Wescoat. For this reason, if for no other, its lien cannot be preserved, even for the true amount of money loaned. Bowie v. Free, 3 Rich. Eq., 403; Dickinson v. Way. Id., 413; Hipp v. Sawyer, Rich. Eq. cases, 410; Younger v. Massey, 39 S. C., 12Ó; Lowry v. Pinson, 2 Bailey, 328.</p> <p>The mortgage executed to John R. Ancrum was also further obnoxious to the Statute of Elizabeth in that it stipulated that all sales of the stock of merchandise, or any part thereof, all moneys, notes, choses in action, taken from purchasers in payment thereof, should be held by John Gelzer in trust for John R. Ancrum. Considering this stipulation, method appears in John R. Ancrum’s apparent madness and recklessness. John R. Ancrum actually agreed with Gelzer not to place his mortgage on record. The reason is now evident. As long as the plaintiffs and other unsecured creditors supplied Gelzer with goods to keep up the stock of merchandise, John R. Ancrum, under the stipulations in-his mortgage, became a direct beneficiary of the fraud of Gelzer, as all the proceeds of sales had to be held by Gelzer in trust for Ancrum., Means v. Dowd, 128 U. S., 273; Robinson v. Elliott, 32 Wall., 524.</p> <p>Each of the mortgages executed by John Gelzer to the Savings Bank of Rock Hill, dated January 21st, 1893, and December 2d, 1893, respectively, are null and void under the Statute of Elizabeth. Each of them were executed not only to secure the amount of money that Gelzer was indebted to the bank, but also with the ulterior purpose of benefiting Gelzer himself. For this purpose, and with a view to screening Gelzer from his creditors, the savings bank took mortgages aggregating $5,100, whereas John Gelzer never did owe the bank but $3,100, and spread these mortgages with the deceptive statement of the amount secured on the records of York County. Lowry v. Pinson, 2 Bailey, 328; Bowie v. Free, 3 Rich. Eq., 328; Younger v. Massey, 39 S. C., 120. The mortgages having been executed for $2,000 in excess of the true amount in which John Gelzer was indebted to the bank, were not only intended to secure the amounts actually advanced, but also to enable John Gelzer to defeat, delay, hinder, and defraud his creditors. They are, therefore, null and void as to the plaintiffs, and will not be allowed to retain their lien even for the amount of money actually loaned by the bank to Gelzer. All of the mortgages complained of by the plaintiffs in their complaint, namely, the mortgage to J. J. Wescoat, trustee, dated August 17th, 1892, the mortgage to John D. Ancrum, dated September 1st, 1892, mortgage to Savings Bank of Rock Hill, dated January 21st, 1898, and the mortgage to the Savings Bank of Rock Hill, dated December 2d, 1893, are null and void under the assignment act of the State. They each cover all the tangible property that John Gelzer possessed at their respective dates, and, considered seriatim, each one in itself operates as an assignment with preferences. The mortgages are mere evasions of the law of a formal deed of assignment under the assignment act, and seek to accomplish what could not be done through the instrumentality of a formal deed of assignment. The object of the assignment act was to cut off preferences, root and branch, to prevent an insolvent debtor from transferring or assigning his property for the benefit of one or more of his creditors to the exclusion of all others, and whether this object is sought to be effected by a formal deed of assignment or in any other mode, can make no difference. “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.” Wilks v. Walker, 22 S. C., Ill; Austin v. Morris, 23 S. C., 393. It is immaterial whether one instrument or several was used by the insolvent debtor as the means of transferring the whole of his tangible property to one or more of his creditors, to the exclusion of all others. Mannv. Poole, 40 S. C., 1; Mitchell v. Mitchell, 42 S. C., « 475; Meinhard v. Youngblood, 41 S. C., 312; Putney v. Friesleben, 32 S. C., 496; Atistin v. Morris, 23 S. C., 393; Wilks v. Walker, 22 S. C., 111.</p> <p>The mortgage executed by John Gelzer to the Savings Bank of Rock Hill, S. C., on the 2d day of December, 1893, only sixty-eight days in advance of the execution by him of his formal deed of assignment to W. B. Wilson, jr., on the 8th day of February, 1894, was a part of the original scheme to prefer the bank, and to transfer to it all the tangible property of Gelzer, to the exclusion of his other creditors. It must be construed together with the formal deed of assignment, and, so construed, constitutes a deed of assignment with preferences, forbidden by law. Mann v. Poole, 40 S. C., 1; Mitchell v. Mitchell, 42 S. C., 475; Piitney v. Friesleben, 32 S. C., 496; White v. Cotzhazen, 129 U. S., 330. The invalidity of an assignment, such as is contemplated by the assignment act, does not depend upon the fact whether or not the preferred creditor has knowledge of the fraudulent intention of the debtor. The statute denounces the preference, and declares the assignment inoperative, and that is its character, regardless of the bona or mala fides of the preferred creditor. Atistin v. Morris, 23 S. C., 401; Putney v. Friesleben, 32 S. C., 494.</p> <p>The several plaintiffs in this action being the only creditors of John Gelzer who, at the date of the commencement of this action, had reduced their claims to judgment, and had obtained returns of '•'■nulla bona” upon the.several executions issued to enforce each of said judgments, have, by reason of their diligence, obtained a just and legal preference. In fact, at the hearing of this cause before me, it was not questioned that such would be the result, if the plaintiffs succeeded in vacating the mortgages and the deed, of assignment. Ryttenberg v. Keels, 39 S. C., 213-14; Trust Co v. Earle, 110 U. S., 716-17; McDermott v. Strong, 4 Johns. Ch., 691; Pom. Rem. (2d ed.), sec. 267.</p> <p>It is, therefore, ordered, adjudged, and decreed, that each of the mortgages executed by John Gelzer to J. J. Wescoat, trustee, John R. Ancrum, and the two mortgages executed by him to the Savings Bank of Rock Hill, S. C., dated, respectively, the 17th day of August, 1892, 1st day of September, 1892, 21st day of January, 1893, and 2d day of December, 1893, as also the deed of assignment for the benefit of creditors, executed by the said John Gelzer to the defendant, W. B. Wilson, jr., on the 8th day of February, 1894 (all of which are specifically set forth in the complaint), be, and they are hereby, vacated and set aside as fraudulent and void; that Harry McCaw and William C. Gist, of the county of York and State aforesaid, be, and they are hereby, appointed receivers of all the property and assets of John Gelzer, of every kind and description whatsoever not exempt by law from levy and sale, with all the powers and duties, and subject to all the liabilities, of such receivers, upon their entering into bond in the usual form. * * *</p> <p>From this judgment the defendants appeal on the following exceptions:</p> <p>First, as to the introduction of evidence:</p> <p>1. For error in allowing the judgment roll of Tabb & Jenkins Hardware Co. v. John Gelzer to be introduced over defendants’ objection.</p> <p>2. For error in excluding the judgment roll of Marshall, Wescoat & Co. v. B. A. Crawford, offered by the defendant; and in this connection, for error in refusing to allow the defendants leave to file their supplemental answer, pleading the said judgment.</p> <p>3. For error in not excluding, and again for error in not ruling upon, certain of the testimony offered by the plaintiffs; and again for error in not admitting certain of it offered by the defendants, upon the various grounds noted at the hearing, to wit: a. Not excluding, and not ruling upon, the testimony of the witness, Watt, as to declarations of Welling on appraisement and value, b. Not excluding, and not ruling upon, all declarations of John Gelzer after the execution of the mortgages in issue, whether made by himself on the witness stand, or made to others by letter or word of mouth, and sought to be proved by such letters, or by other witnesses.</p> <p>Second, as to findings in decree:</p> <p>1. For error in finding as matter of fact in reference to each of the mortgages set aside (Marshall, Wescoat & Co., J. E. Ancrum, the Savings Bank of Rock Hill, first and second), that at the time of its execution, severally: a. John Gelzer was a resident of Charleston County; b. John Gelzer was insolvent; c. John Gelzer knew himself to be insolvent; d. Each mortgagee knew John Gelzer to be insolvent; e. Each mortgagee had reasonable cause to believe John Gelzer insolvent; f. Each of the mortgages covered all John Gelzer’s property; g. Each of the mortgages covered all John Gelzer’s tangible property; h. Each mortgagee agreed with John Gelzer not to record his mortgage; i. Each mortgagee so agreed with the purpose of aiding John Gelzer to deceive his creditors; k. Each mortgage was given and taken not for security to the mortgagee simply, but for the ulterior purpose of benefiting John Gelzer, and of aiding him to hinder, delay, defraud, and deceive his creditors,' and especially the plaintiffs; 1. Each mortgage was made by Gelzer with intent thereby- — -and also with intent in connection with his anticipated deed of assignment- — -to make an assignment of all his property with a preference to the mortgagee, in fraud of the assignment act; m. Each mortgagee accepted his mortgage, knowing of the intention of John Gelzer as aforesaid.</p> <p>2. For error in finding as matters of fact: a. In reference to the Marshall, Wescoat & Co. mortgage, that it was taken for $400 more than was actually due, with intent to deceive his creditors; and in this connection for failing to find that the part of the mortgage in excess of $400 was made to Wescoat as trustee for another person; and for failing to find that at that time John Gelzer was not indebted to any other persons. b. In reference to the savings bank’s second mortgage, that it was taken for $2,000 more than was actually due, with like intent; and in this connection, for failing to find that the savings bank’s second mortgage was taken in furtherance of an agreement made at the time of the taking of the $2,000 mortgage, that an additional mortgage would be given to cover such advances as might be made beyond the $2,000, after allowing all proper credits, and as collateral security to the first mortgage; and for failing to find that the bank or its assignees ever claimed that any debt ever existed in excess of $3,100; and for failing to find that the savings bank’s first mortgage was not for money then loaned, but was given as security for further advances, to aid John Gelzer in conducting his mercantile business.</p> <p>3. For error of law in finding: a. That the want of record of the Marshall, Wescoat & Co. and J. L- Ancrum mortgages in Charleston County rendered each of them void as to all subsequent creditors with or without liens, b. That the facts recited in the affidavit upon which the Tabb & Jenkins attachment was issued, and in deposition of the witness, Charles T. Jenkins, were and are wholly insufficient proof of notice of the existence of the mortgages referred to therein, so as to supply the place of record, c. That each of the mortgages is void under the act of Elizabeth; and in this connection, that each mortgage shows on its face an ulterior purpose to benefit the mortgagor, as the price of the mortgagee’s preference, d. And as to the John E. Ancrum mortgage, that its terms, requiring the proceeds of sale to be held in trust, made the mortgagee a conscious beneficiary of John Gelzer’s fradulent purpose to deceive his creditors, e. That each of the mortgages is void under the assignment act, as a disposition of all the mortgagor’s property with preference to the mortgage creditors; and, in this connection, that it is immaterial whether the mortgagee knew that such was his intention, f. That the savings bank’s second mortgage was void, because made' within ninety days of the deed of assignment, g. That because the Marshall, Wescoat & Co. and the savings bank’s second mortgage were taken — each of them — for more than due, neither of them could stand as security for the real amount due.</p> <p>4. For error of law and fact in each of the findings made in the following language: “At the time of the execution of the several mortgages to J. J. Wescoat, trustee, John E. Ancrum, and the two mortgages to the Savings Bank of Rock Hill, S. C., on the 17th day of August, 1892, 1st day of September, 1892, 21st day of January, 1893, and the 2d day of December, 1893, respectively, John Gelzer was insolvent, and each of the said mortgagees either knew, or had good reason to know, that he was insolvent, and each of these transactions was had and made in pursuance of an original design and intent of the said John Gelzer and each of the mortgagees above mentioned, determined on by them at the inception of each transaction, to transfer and assign all of the tangible property of the said John Gelzer to the said mortgagees, to the exclusion of all the other creditors of the said John Gelzer. The conduct of all the mortga.gees shows that they, each and every one of them, colluded with the mortgagor; that they used the indebtedness of John Gelzer to themselves, to draw up notes (in the instances of J. J. Wescoat, trustee, and of the savings bank for more than the true amounts) and mortgages that were intended not as security, pure and simple, for the repayment of the money due' by John Gelzer, but also for the ulterior purpose of benefiting John Gelzer, who, pursuant to the original scheme, was to continue in possession of the stock of goods, after maturity, to continue to do business just as if no mortgages were in existence, to hold out the stock of goods to the world as his own property, and thereby to obtain a corresponding credit. John Gelzer, in effect, made the following proposition to each of the mortgagees: I will give you a preference, and will assign to you all of my tangible property, provided you will allow me to have the use of it, indefinitely or until I can pay off the debt. Each of the mortgagees assented to this proposition, and did suffer Gelzer to remain in possession of the stock of merchandise, which constituted the whole of his tangible propertjq indefinitely, to hold out the said stock to the world as his own property, and to do business at his old stand, and in his own name, and for his own benefit, until a few days preceding the execution of the formal deed of assignment on the 8th of February, 1894. The conduct of all the mortgagees as thus shown, deceived plaintiffs, misled them, and caused them to extend credit to John Gelzer, which they would otherwise not have done.”</p> <p>5. Error in requiring each of the mortgagees to account for the goods at their ex parte appraised value.</p> <p>6. For error of law and fact in holding that John Gelzer made his deed of assignment with intent to hinder, delay, and defraud his creditors.</p> <p>cites: Fraiid: 22 S. B. R., 792; Speer’s Eq., 311; 112 N. C., 180; 36 W. Va., 391; 80 Ga., 247; 88 Va., 980; 33 Hun., 557; 20 S. C., 431; 33 S. C., 475; 38 S. C., 462; Rice’s Eq., 78; 3 Rich. Eq., 410; 27 S. C., 272; 39 S. C., 150. Assignment: 26 S. C., 250; 39 S. C., 150; 27 S. C., 272; 43 S. C., 456.</p> <p>cites: 18 S. C.; Kirshlam v. Isreal, 1 Speer Eq., 14. Recording: 23 S. C., 543. Insolvency: 23 S. C., 394; 27 S. C., 272 and 491; 40 S. C., 1.</p> <p>cites.- Evidence: 17 S. C., 35. Sup. Answer: 2 Wait’s Pr., 470, 471, 474; Code, 198; 16 S. C., 350; 46 N. Y., 200. Exceptions: 30 S. C., 167; 43 S. C., 99; 42 S. C., 281; 24 S. E. R., 101. Findings: 41 S. C., 546, 547; 16 S. C., 633; 43 S. C., 99. Recording: Rev. Stat., 1776, 1968, 2346; 31 S. C., 141, 147; Sp. Eq., 1, 211, 212; 31 S. C., 150; 33 S. C., 472, 473; 23 S. C., 94; Mortgages: 32 S. C., 171; 2 Bail., 328. Assignment: 26 S. C., 446; 40 S. C., 1; 42 S. C., 475. Exceptions: 40 S. C., 437; 30 S. C., 167; 43 S. C., 99; 42 S. C., 281; 24 S. E. R., 101; 27 S. C., 285.</p> <p>cite: Recording: 31 S. C., 147; Rev. Stat., 1968. Fratid: 21 S. C., 391; 1 Hill, 25; 31 S. C., 36. Assignment: Rev. Stat., 2146; 22 S. C., Ill; 22 S. E. R., 2; 43 S. C., 342; 23 S. C., 401; 39 S. C., 120.</p>

Indictment against Wm. Choice and James Pickett, for transporting liquors from place to place within the State, under dispensary law of 1894. James Pickett was convicted, and appeals. cites: Dis. Act of 1894, secs. 1, 35, and 37; Crim. Code, 55; 23 A. & E. Ency., 311. filed no argument.

Action by Caroline A. Wragge, as administratrix of the estate of Henry H. Wragge, against the South Carolina and Georgia Railroad Company, for running its engines and cars over the deceased, at a public crossing, and killing him, without giving the statutory signals. The following are the requests to charge, and the remarks of the Judge thereon, so far as the same relates to the questions involved: .

Action by the Columbia Water Power Company against the Columbia Land and Investment Company, for possession of two lots of land in Columbia. Complaint dismissed. Plaintiff appeals. cites: 45 N. Y., 116, 117; 56 Mo., 86; 5 How. Pr., 118; Code, 183; 2 Abbts. Pr., 403, 408; 55 E. C. L-, 8 Adolphus & Ellis, N. &, 882; 7 Ellis & Blackburn, 812; 90 E. C. L., 10 B. & C., 202; 21 E. C. L-, 60; 6 Ellis & Blackburn, 824; 88 E. C. L., 2 Abbts.

<p>Action in partition by Wm. P. Goforth against Martha Goforth. The facts are fully set forth in the following report of the referee, W. W. Tewis:</p> <p>The above stated cause having been referred to me by his Honor, Judge Benet, to try all the issues of law and fact, and to report on the same to this Court, I beg leave to submit the following as my report:</p> <p>I held a reference at Blacksburg, S. C., on the 10th day of September, 1895; present, the attorneys of record. The testimony taken is herewith respectfully submitted.</p> <p>(1) I find, as a matter of fact, that in the year 1878, Martha Goforth, the defendant herein, constituted and appointed her husband, H. P. Goforth, her agent, to purchase for her the tract of land described in the complaint; and further, to have title to said land made to her. That he, as agent for the said defendant, did purchase the said land, and did cause the deed (made in 1878) to be made to Martha Go-forth and Wm. P. Goforth, her step-son, a minor of the age of six or seven years. The entire consideration, as admitted, was money belonging to Martha Goforth, and which she had obtained from her father’s estate; this, with the exception of a small amount which was derived from the crops made on the land described in the complaint. The said deed was put on record in the proper office in the county of York on the 22d day'of April, 1878. Sometime after the deed was executed — certainly before 1885 — the defendant, Martha Goforth, was informed of the manner in which, and to whom, the deed had been executed; and she and her husband had repeated quarrels over the execution of the deed in the manner set forth above. Martha Goforth, H. P. Goforth, and W. P. Goforth resided on the land from the time of its purchase until about the year 1885 or 1886. The rents and profits were collected by H. P. Goforth, and used by the family until 1890. In 1891 the rents were divided between H. P. Goforth and Martha Goforth. W. P. Goforth at no time made any demand on the defendant (so far as the testimony shows) for any rents or profits, nor did he make any claim of interest in the land until the year 1893, when he demanded partition of the premises. I find no testimony going to show that Martha Goforth ever acquiesced in the making of the deed to W. P. Goforth and herself, nor that she ever considered said W. P. Goforth a tenant in common with herself. I further find that the plaintiff attained his majority in the year 1893.</p> <p>From the above facts, I conclude that when the deed to the property mentioned in the complaint was made to the plaintiff and the defendant herein, there resulted a trust of one-half interest in this land, of which trust the plaintiff became trustee and the defendant the cestui que trtist.</p> <p>(2) That although the defendant had actual notice of the fraud perpetrated on her by her husband in favor of the plaintiff, a minor, for more than six years before the commencement of this action, yet could this not enure to the benefit of the plaintiff, and thereby give currency to the statute until the said minor attained his majority.</p> <p>(3) That upon the plaintiff attaining his majority in 1893, and having then adopted the fraud of his father, the statute would begin to run in his favor, both as trustee of the resulting trust, as well as a participant in the fraud perpetrated on the defendant as aforesaid.</p> <p>(4) That this action having been commenced within six years from the currency of the statute, the claim set up by the plaintiff that the defendant’s rights are barred, cannot be sustained.</p> <p>(5) That the defendant having proven conclusively her claim to the beneficial interest in the entire tract of land set out in the complaint, and she not having been barred by the statute of limitations, is entitled to have the deed before mentioned corrected, and to the decree of this Court declaring the defendant the sole and exclusive owner in fee simple of the aforesaid lands.'</p> <p>It is, therefore, recommended, that the order of this Court do issue, requiring' the plaintiff to surrender the said deed to this Court, and that it be corrected in the particulars herein set forth.</p> <p>From this report the plaintiff appealed, and the Circuit Court filed the following decree:</p> <p>This is an action for the partition of a tract of land. The plaintiff claims an undivided half of said land, and alleges that the defendant owns one undivided half, and no more.</p> <p>The defendant. denies the tenancy in common, and alleges, among other things, that the land was purchased with her money, and that the deed was fraudulently made without her knowledge or consent to William P. Goforth and herself, jointly, instead of to herself, alone; and hence, that William ’ P. Goforth has no title or interest whatever in said land; and she asks that the complaint for partition be dismissed, and that the said deed be reformed so as to vest the title to said land in her, the defendant, solely and alone. The plaintiff in his reply to the defendant’s answer denies that the defendant has ever been the sole occupant of said land, and alleges that the plaintiff and the defendant have occupied the said land together ever since said deed was made, and have also used the said rents in common during that time until now. He also alleges knowledge on the part of the defendant of the alleged fraud more than six years prior to the commencement of this action, and pleads the statute of limitations.</p> <p>It was referred to W. W. Lewis, Esq., to pass upon all the issues of law and fact, and to report any special matter. The referee took the testimony and made his report, and the case comes up before me now on exceptions to said report by the plaintiff. Certain objections were made at the different references to the introduction of testimony, and exceptions taken to the rulings of the referee, as appears from the proceedings; but these exceptions are not brought before this Court, nor .is any allusion made to them in the exceptions, except so far as they may be involved in exceptions to certain findings of fact by the referee.</p> <p>The first exception of the plaintiff is as follows: “The referee erred in holding that there was a resulting trust in favor of the defendant, when the same was not pleaded as a defense in the defendant’s answer.” The objection here is, that allegations in the answer of the defendant are not sufficient to support such finding. There is no complaint that the testimony does not support such findings. The exception involves, therefore, a construction of the answer in that respect. The answer alleges, in substance, that the land was purchased with her money, under instructions from her to her husband to have the deed made to her alone, but that her husband violated her instructions in respect to the deed, without her knowledge or consent, and had it made to her and William P. Goforth jointly. This, I would say, is a sufficient allegation of a resulting trust; and I agree with the referee that the testimony supports his finding as to such trust.</p> <p>The second exception of the plaintiff is as follows: “The referee found as a matter of fact that the deed in controversy was properly recorded in the office of register of mesne conveyance for York County, S. C., in the year 1878; that before 1885 the defendant, Martha Goforth, was informed of the manner in which, and to whom, the deed was executed; and the referee should have held as a matter of law that the statute of limitations began to run against the defendant from the discovery of the fraud, which was more than six years from the commencement of this action.” If 'the defendant had chosen to institute an action to set aside the deed, or to reform it, it would have been necessary for her to commence her action within six years from the discovery of the fraud; but as she chose to wait till her rights under the deed were assailed, she was not bound by the statute of limitations (Amaker v. New, 33 S. C., 28), and hence I agree with the referee again in his findings.</p> <p>The third exception of the plaintiff is as follows: “The referee erred when he held as a matter of law that the discovery of the fraud by the defendant did not give currency to the statute until said minor attained his majority, whereas the referee should have held that the statute of limitations started against the defendant from the discovery of the fraud by the defendant, notwithstanding the age of the plaintiff.” I think the referee erred in this finding, if he referred to an action by the defendant. As to any action which the defendant might desire to bring, the statute commenced to run at the time of the discovery of the fraud, irrespective of the age of the plaintiff; but as to any defense she might desire to set up, whenever she should be assailed by the plaintiff, the statute did not apply, and, of course, did not run against her. In this case the defendant chose the latter plan of protecting her rights.</p> <p>Plaintiff’s fourth exception is as follows: “The referee erred when he held that the plaintiff adopted his father’s fraud, and that the statute did not begin to run until 1893, or against the resulting trust until that date.” I agree with the referee, that the plaintiff adopted his father’s fraud- — - otherwise he could not have instituted this action; and what I have already said in regard to the statute of limitations, is sufficient as to wThen the statute began to run. Plaintiff’s fifth exception is also answered by what has already been said, and is overruled.</p> <p>Plaintiff’s sixth exception is as follows: “That he erred when he held that the defendant is the sole and exclusive owner in fee simple of the aforesaid land; whereas he should have held that one-half of the land (for the reasons heretofore stated) belonged to the plaintiff.” I agree entirely with the referee in this finding. It is, therefore, ordered, adjudged, and decreed: First. That the complaint be dismissed, and that the plaintiff pay the cost of this action. Second. That W. W. Lewis, Fsq., the referee in this case, execute and deliver to the defendant, Martha Goforth, a deed of conveyance under the form required by law to the one-half undivided interest in the land claimed by the plaintiff, as set forth in this action; using in said deed apt and suitable words to convey to and vest in her, her heirs and assigns forever, the fee-simple title to said half interest, and reciting therein so much of the deed from Thomas Mullinax, Frances Mullinax, and Mary A. Sherer to Martha Goforth and W. P. Goforth, and of these proceedings, as will explain the reasons and necessity and authority for making deed by the Court, as hereinbefore directed.</p> <p>From this decree plaintiff appeals on following exceptions:</p> <p>1st. It was error when his Honor, D. A. Townsend, held that there was a resulting trust established in favor of the defendant; but if he was correct in this, it being an implied or resulting trust, he should have held that this defense was not available to the defendant, on account of the statute of limitations.</p> <p>2d. This being an action in equity, wherein the referee and the Circuit Judge held that the defendant had knowledge of the fraud more than six years before the commencement of this action; that at the time there was a plaintiff who could sue and a defendant who could be sued, he erred when he did not hold that a cause of action had then accrued to the defendant, and because the defendant did not sue within six years from the accrual of the cause of action— the discovery of the fraud — she was barred by the statute of limitations.</p> <p>3d. He erred when he held: “If the defendant had chosen to institute an action to set aside the deed or to reform it, it would have been necessary for her to commence her action within six years from the discovery of the fraud; but as she chose to wait till her rights under the deed were assailed, she was not bound by the statute of limitations;” whereas he should have held that the defendant was the actor in attacking the deed for fraud — was first to assail its validity in equity — and should have done so within six years from the discovery of the fraud.</p> <p>4th. He erred when he held that the statute of limitations did not begin to run until the plaintiff adopted his father’s fraud (1893), against the fraud or resulting trust.</p> <p>5th. He erred when he held that the defendant was the sole and exclusive owner of all the land described in the complaint; whereas he should have held that one-half of it belonged to the plaintiff herein, for the foregoing reasons.</p> <p>cites, on first point: 10 A. & E. Eucy., 14, notes 1 and 3; on second: 29 Id., 6, n. 3; Beard v. Stanton, 15 S. C., 164; Bugg v. Summer, 1 McM., 333; Clark v. Bowman, 18 Wall, 493; Riddler v. Whitehead, 135 U. S., 621; Code, 118; McMakin v. Gowau, 18 S. C., 505; Brown v. Brown, 22 S. E. R., 414; Code, 112, subd. 6; 19 S. C., 482; 18 S. C., 521; 23 S- C., 410; 16 S. C., 611; Rott v. DeGraffenreid, 10 Rich. Eq., 353; McRure v. Ashby, 7 Rich. Eq., 444; Chalmers v. Glenn, 18 S. C., 471; Súber v. Chandler, 18 S. C., 530; Wood on Rim., sec. 61; Pom. Eq. Jur., secs. 817, 917; Amaker v. New, 33 S. C.; Jackson v. Phyler, 38 S. C., 496.</p> <p>submitted argument, but did not furnish Reporter one.</p>

Action by the People’s Bank against Thos. S. Brice' and John R. Craig, as assignee of Calvin Brice, survivor of Calvin Brice Co., for foreclosure.

Action in foreclosure by Whaley & Rivers against Willis J. Duncan and others. Held: if it be true that Whaley & Rivers have not carried out their part of the contract, that the said Whaley & Rivers be compelled to perform the same, or that the deeds and other transfers made by Duncan to Whaley & Rivers be declared null and void, and stricken from the record. 9.

Action by William J. Cunningham, Thornwell K. Cunningham, Beauregard Cunningham, Robert T. Dunlap, et al. against Rewis J. Cauthen, as administrator of Andrew J. Kibler. The questions on appeal are stated in the following decree: Under the decree and orders of the Court herein, the clerk of this Court proceeded to tax the costs and disbursements of the plaintiffs in this action, and entered the same in the judgement in favor of the plaintiffs and against the defendant.

The defendant, Aaron R. Richardson, was indicted for larceny of live stock, and put upon trial. After one witness was examined, solicitor asked to withdraw case on account of absence of witnesses. Case was withdrawn, and defendant put on trial next day for same offense under same indictment.

<p>1. Exceptions. — Under the rulings in this case, there is no practical basis for the first ground, of appeal.</p> <p>2. Attorney and Client — Receipt—Fee—Evidence.—Upon the question of how much it cost a client to defend a certain claim, it is competent to prove by the attorney how much the client told him he allowed him for this special work in paying him for this and other services, and the contents of a lost receipt for such payment, dictated by the client, may he proven.</p> <p>3. Defense — Nudum Pactum.- — The defense of nudum pactum need not he set up as an affirmative defense to a complaint on an instrument which does, not on its face import a consideration.</p> <p>4. Jury — -Quantum Meruit — -FEE.—It is the province of the jury to fix the amount of a fee, where no amount has been agreed upon.</p> <p>5. Pleadings — Allegations—Admissions.—Allegations and admissions in pleadings relate only to matters of fact, and not to propositions of law.</p> <p>6. INTEREST. — There is nothing in the pleadings and evidence in this case to show that the plaintiff was entitled to interest on the amount sued on from date of the instrument.</p>

Action by the Sullivan Hardware Co. against J. W. Washington, D. C. Smith, J. H. Wharton, and R. N. Cunningham, to foreclose a chattel mortgage given to secure purchase money of certain machinery. The defendants set up counter-claim for damages for breach of warranty, and demanded jury trial of this issue. Circuit Court refused the motion. Defendants appeal. cite: Pom.

Action by Elisha Bomar, William T. Russell, Jane Holtzhouser, as administratrix of the estate of Andrew Holtzhouser, deceased, and J. A. Lee and J. Boyce Lee, partners, doing business under the name of J. A. Lee & Son, against H. E. Means, Albert G. Means, sr., Albert G. Means, Jr., Sarah J. Archer, Nannie B. Means, Jessie M. Thomson, Haggie H. Chapman, Voluna L. Means, and Bessie A. Heinitsh.

Action by R. J. Anderson and W. F. hemmon, as executors of the last will and testament of Mary C. Wilson, deceased, substituted in her stead by order of Court, against J. Frierson Woodward and Henry Woodward; the same plaintiffs against J. Frierson Woodward and Dave Cousar; the same plaintiffs against J. Frierson Woodward and Thomas Washington.

<p>1. Evidence — Coeeaterae—Note.—A certificate of stock pledged as collateral to a note, may properly be admitted in evidence in a suit upon the note.</p> <p>2. Ibid. — Conversation'—Note.—The whole of a conversation with defendant about the payment of a note is competent evidence in an action upon the note when payment is denied.</p> <p>3. Instrument — Coeeaterae—Note.'—An instrument may legally include a promise to pay,' and a pledge of collateral to secure its payment, over one signature.</p> <p>4. SaeE — Coeeaterae.—It is not error in the Circuit Judge in this case to order the pledged collateral sold at instance of either party.</p> <p>5. Words and Phrases. — The words, “without recourse,” as used in the instrument sued on here, properly held to apply only to the stock pledged.</p>

Action by J. B. Ross against Jones, BJanton & Co. The complaint stated separately three causes of action. After answer, defendants moved to have plaintiff to elect which cause he would try first. Motion granted. Plaintiff appeals. cite: 9 S. C., 277; 37 S. C., 42, 55; 30 S. C., 11; 38 S. C., 487; Code, 188. furnished no argument.

Action by Nannah Jackson, alias Nannah Crow, suing in behalf of herself and all other creditors of the defendant, the Cherokee Medicine Company, who shall in due time come into and seek relief by this action and contribute to the expense thereof, against the Cherokee Medicine Company, a corporation created by and under the laws of said State, and R. C. Richey, Marion B. Beach, J. T. Blassingame, J. C. Fitzgerald, A. B. Brown, C. B. Wideman, James B. Payne, James S. Cureton,…

Appeal by the Town Council of Beaufort from order of Circuit Court, affirming taxation of costs by clerk, by W. H. Bartless et al., in prohibition proceeding against the town. cites: 2 Bay, 323; 1 Strob., 176; 22 S. F. R., 719; Code, 452; Rev. Stat., 2459; 10 S. C., 40; 18 S. C., 597; Acts, 1892, 30; 17 S. F. R., 355. cite: 21 Stat., 30 (Rev. Stat., 2552); 10 S. C., 40; 18 S. C., 597; 21 S. C., 183.

Action by James N. Kirven, in claim and delivery for one mare and colt, against Henry R. Pinckney, jr., and Manly Boykin. Judgment for plaintiff. .Defendants appeal. cite: Exchange: . Smith’s Mer. Law, sec. 557, note 2; 7 S. E. R., 171. Sale: Benj. on Sales, 1 Am. ed., 308, 318, 319, and notes; 37 Me., 230 (59 Am. Dec., 49, 50); 3 Wend., 112 (20 Am. Dec., 671-2); 49 N. Y., 35; 61 Me., 45; 34 N. H., 290; 20 Pick., 280.

<p>Action by J.Whilden Woodward against the South Carolina and Georgia Railroad Company by the following complaint:</p> <p>The plaintiff, complaining of the defendants above named, alleges, first, for a first cause of action:</p> <p>1. That at the times hereinafter mentioned the defendants above named were, and still are, a corporation duly organized and existing under the laws of this State, and were the owners of and operating a certain railroad, known as the South Carolina and Georgia Railroad, running from the city of Augusta, in the State of Georgia, through the town of Blackville, in the county of Barnwell, to the city of Charleston, in said State of South Carolina, together with the track, cars, locomotives, and other appurtenances thereto belonging.</p> <p>2. That on the 18th day of April, A. D. 1895, the defendants above named, the South Carolina and Georgia Railroad Company, by their servants, agents and employees, had under their care, control, and management, a certain locomotive engine and train of freight cars, the property of said defendants, which said agents and employees were then and there running and managing upon the defendants’ railroad track in said town of Blackville; that the defendants, by théir servants, agents and employees, carelessly and negligently stopped and left said train of freight cars coupled together and standing upon and extending across the entire width of Lartigue street, one of the regular laid out and public streets of said town, and along Railroad avenue, another regularly laid out and public street of said town, on both sides of said Lartigue street, at the intersection of said Lartigue street with said Railroad avenue, which said Lartigue street and Railroad avenue are public streets of said town, and highways of said county, much used by the public generally, and unnecessarily left said train of cars standing across said Lartigue street and along Railroad avenue on both sides of said street, for a longer period than five minutes, to wit: fifteen minutes, in such manner as to unnecessarily stop and deprive the public from the use of said street and avenue, and to unnecessarily obstruct said streets and highways to the hindrance and inconvenience of travelers and any person or persons passing along or upon said streets and highways, in violation of section 23 of an act of the General Assembly of the State of South Carolina, entitled “An act relating to roads and highways in Barnwell County,” approved January 5th, 1895.</p> <p>3. That at the time mentioned in the last paragraph of this complaint, the plaintiff was walking along said streets to said intersection of Lartigue street with Railroad avenue for the purpose of passing from the north side of Railroad avenue to the south side of said Railroad avenue, in order to attend to his business, and finding said street and avenue obstructed by the defendants, their servants, agents and employees, as stated in the last paragraph of this complaint, attempted to cross said street and avenue by passing between said freight cars, which had been placed across said street and along said avenue by the defendants as aforesaid, and left by said defendants in such position for fifteen minutes, and while the plaintiff was passing between said cars the defendants, their agents, servants and employees, caused said cars to be moved and pushed together in such manner that the plaintiff was caught between said cars, his knee and leg crushed and ’mashed, his nervous system greatly shocked, and was otherwise greatly damaged.</p> <p>4. That by reason of the aforesaid injuries, caused by the unlawful act of the defendants in obstructing said streets and highways, the plaintiff became ill for a long time, was obliged to, and actually did, expend large sums of money for surgical and other treatment and attendance in attempting to cure himself, but his injuries were and are of a permanent nature, and the plaintiff is thereby prevented from actively engaging in business, and was otherwise greatly injured to his damage in the sum of $10,000.</p> <p>Second, for a second cause of action:</p> <p>1. That at the times hereinafter mentioned, the defendants above named were, and still are, a corporation duly organized and existing under the laws of this State, and were the owners of and operating a certain railroad, known as the South Carolina and Georgia Railroad, running from the city of Augusta, in the State of Georgia, through the town of Blackville, in the county of Barnwell, to the city of Charleston, in the State of South Carolina, together with the track, cars, locomotives and other appurtenances thereto belonging.</p> <p>2. That on the 18th day of April, A. D. 1895, the defendants above named, the South Carolina and Georgia Railroad Company, by their agents, servants and employees, had under their care, control, and management, a certain locomotive engine and train of freight cars, the property of said defendants, which said agents and employees were then and there running and managing upon the defendants’ railroad track in the town of Blackville, and that the defendants, by their servants, agents and employees, carelessly and negligently stopped and left said train of cars coupled together and standing upon and extending across the entire width of Lartigue street, one of the regularly laid out and public streets of said town, and along Railroad avenue, another regularly laid out and public street of said town, on both sides of said Lartigue street, at the intersection of said Railroad avenue with said Lartigue street; the said Lartigue street and Railroad avenue then and there being public streets of said town, and highways of said county, much used by the public generally, and unnecessarily, carelessly and negligently left said train of cars standing upon and extending across said Lartigue street and along said Railroad avenue, an unreasonable length of time, to wit: fifteen minutes, in such manner as to unnecessarily, carelessly and negligently obstruct said Lartigue street and Railroad avenue, to the hindrance and inconvenience of travelers and persons passing along and upon said street and avenue.</p> <p>3. That at the time and place mentioned in the last paragraph, the plaintiff was walking along said streets to said intersection of Lartigue street with Railroad avenue for the purpose of passing from the north side of Railroad avenue to the south side of said avenue in order to attend to his business, and finding said street and avenue obstructed by the defendants, their servants, agents and employees, as stated in the last paragraph of this complaint, carefully and without any negligence or fault on his part attempted to cross said avenue and street at the intersection of said street and avenue, by passing between said cars, which had been placed across said street and along said avenue, and carelessly, negligently, and unnecessarily left in such position for fifteen minutes by said defendants, their servants, agents and employees, and while the plaintiff was passing between said cars, the defendants, their servants, agents and employees, negligently and carelessly caused said cars to be moved and pushed together in such manner that the plaintiff was caught between said cars, his knee and leg crushed and mashed, his nervous system greatly shocked, and was otherwise greatly damaged.</p> <p>4. That by reason of the aforesaid 'injuries the plaintiff became ill for a long time, was obliged to and actually did expend large sums of money for surgical and.other treatment in attempting to cure himself, but his injuries are and were of a permanent nature, and the plaintiff is thereby prevented from actively engaging in business, and was otherwise greatly injured to his damage in the sum of $10,000.</p> <p>Wherefore the plaintiff demands judgment against the defendants for the sum of $10,000.</p> <p>To this complaint the defendant demurs as follows:</p> <p>1st. The defendant above named demurs to the first cause of action stated in the complaint herein, upon the ground that it appears upon the face of the complaint that the complaint does not state facts sufficient to constitute a cause of action.</p> <p>2d. The defendant further demurs to the second cause of action stated in the complaint, upon the grounds that the complaint does not state facts sufficient to constitute a cause of action.</p> <p>The demurrer was heard in due course, and his Honor, Judge O. W. Buchanan, the presiding Judge, filed the following opinion and order:</p> <p>The above entitled cause came on to be heard before me on a demurrer to the first and second causes of action stated in the complaint, upon the ground that neither of them stated facts sufficient to constitute a cause of action. At the close of the argument, counsel for the defendant stated that he does not insist upon the demurrer to the second cause of action, and asked that if it should be overruled, leave should be given him to serve an answer thereto. As to the first cause of action stated in the complaint, the defendant contends that the statute entitled “An act relating to roads and highways in Barnwell County,” approved January 5, 1895, upon the 23d section of which the plaintiff contends this cause of action is founded, gives no remedy whatever to any private individual on his own behalf, but that the only remedy given thereby is to the public, and is a penalty for the unnecessary obstruction of a street by a railroad company for a longer period than five minutes, to wit: A fine not exceeding $20 nor less than $5, to be recovered by an action at the suit of the township board of commissioners, or any person suing for the same, before any trial justice within the county, or by indictment in the Court of General Sessions for said county. Defendant further contends, that it appearing from the complaint that the plaintiff’s injury was caused by his being caught and mashed between the cars, which had been, as alleged, unnecessarily left across the street for a longer period than five minutes, by reason of said cars being moved or pushed together by defendant, the Court should conclude that the moving of the cars rather than the obstruction of the street was the cause of the injury; and as the complaint alleges no negligence whatever (in this cause of action) in the railroad company in moving the cars, no cause of action is stated.' These were the only objections as to the sufficiency of the first cause of action.</p> <p>In reply, the plaintiff contends that the clause, “and shall be liable for all damages arising to any person from such obstruction, in the 23d section of the act, should be construed as remedial, and as giving an action to the person injured; while other clauses in said section are penal in prescribing a penalty, giving the public, to be recovered by an action at the suit of the township board of commissioners or any person suing therefor, or indictment in the Court of General Sessions for the violation of the public law. “There is no impropriety in putting a strict construction on a penal clause and a liberal construction on a remedial clause in the same act of Parliament. This has been done in the Statutes, which make it a felony to burn houses and other property, and give to those who suffer from the felony a remedy against the hundred.” Best, C. J. 2 Bing., 394, 9 E. C. D., cited in 23 Am. & Eng. Enc. of Daw, 380, note. That the object of this statute was to stop the unnecessary obstruction of the highways in Barnwell County by railroad companies, by fixing on the railroad company a liability for “all damages arising to any person from such obstruction,” irrespective of all other questions of negligence than the “unnecessary obstruction” of the highways, as well as to give a remedy for the obstruction to the public.</p> <p>As to the defendants’ other objection to the statement of the first cause of action, that, under the facts stated in the complaint, the plaintiff’s injury arose from the obstruction, citing Murray v. R. R. Co., 10 Rich. R., 252, where a horse being prevented from passing, by'■ an obstruction placed across a highway by a railroad company, and was, while on the track at the crossing, run over and killed by a passing train, and our Court said, “the obstruction of the road was a wrong done by the company which, under the circumstances, would have justly entitled the plaintiff to a recovery, even if the killing had been shown to be, so far as that train was concerned, wholly accidental and blameless.” See, also, Lake Shore & M. S. Ry. Co. v. McIntosh (Ind.), 38 N. E., 476; Elliott on Roads and Streets, 603; C. & N. W. Ry. v. Prescott, 59 Fed. Rep., 237, 9 C. C. A., 109; and the recent case of Littlejohn v. R. & D. R. R. Co., 22 S. E., 789, recently decided by our Court.</p> <p>It is ordered, that the demurrer interposed by the defendant to the first and second causes of action set out in the complaint be, and the same is hereby, overruled, and defendant have leave to serve an answer to both or either of said causes of action, as he may be advised, within twenty days from the filing of this order.</p> <p>The defendant excepts to this order on the following grounds:</p> <p>I. That his Honor erred in deciding that there was -no impropriety in putting a strict construction on the penal clause of the statute referred to in said order and a liberal construction upon the clause denominated by him as “a remedial clause,” to wit: the clause, “and shall be liable for all damages arising to any person from such obstruction or injury to such road or highway;” whereas it is submitted that said clause should have been read and construed together with the clause immediately following the same, to wit: “to be recovered by an action at the suit of the township board of commissioners in which such offense shall have been committed, or any person suing for the same before any trial justice within the county where such offense shall have been committed,” as giving a remedy only in a court of trial justice and not in the Court of Common Pleas.</p> <p>II. That his Honor erred in deciding that the object of the statute was to stop the unnecessary obstruction of the highways in Barnwell County by fixing on the railroad companies a liability for all damages arising to any person from such obstruction, irrespective of all other questions of negligence than the unnecessary obstruction of the highways; whereas it is submitted chat he should have decided that the object of the statute was to give a remedy before a court of trial justice or by indictment, and not to give a general remedy for an unlimited amount before the Court of Common Pleas.</p> <p>cites: 21 Stat., 954; 2 Bing. Rep., 354; Heydon’s Case, 3 Rep., 76; Endlich on Int. of Stat., 127, 128; South, on Stat. Con., 228, 316; Potter’s Dwarris on Stat. and Con., 233; 41 S. C., 86; 1 Bay, 73; 28 S. C., 238; 1 Hill, 365; 5 Rich., 583; 30 S. C., 539; 24 S. E. R., 337; 24 S. C., 366.</p> <p>cite: 21 Stat., 961; 3 Mete., 523; Potter’s Dwarris Stat, 74; 23 A. & E. Ency., 144; 102 U. S., 611; 2 Bl. Comm., 427; R. R. 1 Exch., 152; 1 Bl. Comm., 88; Wilb. St., 233; 3 How., 197; 13 Pick., 101; 13 Raw Times, 753; Black. Int. Raws, 293, 298, 309; 21 Ohio St., 586; 23 A. & E- Ency., 379; 74 N. Y., 526; 17 N. E., 600; 2 N. E., 221; 23 A. & E. Ency., 144; 59 Ind., 130; 56 Ind., 263; 82 Ind., 426; 75 111., 93; 20 N. E., 132; 22 N. E., 304; 21 S. C., 495; 30 S. C., 539; 9 S. E., 650; 24 S. E., 319; 23 A. & E. Ency., 394; Black. Int. Raws, 84; 2 Edw. Ch., 304; 1 Mason, 243, 290; Ted. Cas., No. 2121; 11 Bush., 527; 31 S. C., 378; 24 S. C., 370; 25 S. C., 485; 22 S. E., 505; 22 S. B., 789; 7 S. E., 516; 16 A. & B. Ency., 452; 61 Bed. Rep., 592, 605; 9 C. C. A., 656, 666; 10 Rich. R., 252; 38 N. E., 476-482; 59 Fed. Rep., 237; 21 S. C., 495; 112 Mo., 238; 41 N. E., 981; 28 N. E., 317; 77 Iowa, 672; 32 Minn., 457.</p>

<p>Action in claim and delivery by J. R. Cothran against J. E. Knight and Robert Coker. The following is the charge of the Circuit Judge:</p> <p>The plaintiff, J. R. Cothran, brings this action against J. E. Knight and Robert Coker, the defendants, claiming that they are in possession of 2,880 pounds of seed cotton and twenty-two bushels of cotton seed, and that they are wrongfully in possession of it and withholding it from him, and the reason he alleges is that he received a summons requiring him to appear before ’Squire Scott to answer to the complaint for $64; and that the summons was issued that day and served that day, and judgment rendered against the plaintiff on that same day for $64.75, and that execution was issued on that same day and placed in the hands of Coker, the township constable for Trial Justice Scott, and that on that day he seized the said property in the possession of the plaintiff. The plaintiff alleges that the said property was not taken for a tax assessment or fine; that the actual value of the property is about $85, and that by reason of this seizure the plaintiff has suffered to the amount of $1,000, and he demands at your hands a return of the property, 'and the sum of $1,000 as damages. The defendants, J. E. Knight and Robert Coker, allege that the judgment was rendered by Trial Justice Scott for the amount already stated, ánd that that was on an account for money and provisions and merchandise used in the production of the crop, and that on the same day execution was issued and the crop levied on by the constable, and they claim that they had a right to take the property and sell it as was done. You have heard the testimony in the case and the arguments on the law. I was compelled to charge that the record of the trial justice sent up in the case was admissible in evidence here. If you believe that Cothran was indebted as alleged to J. E. Knight in the way as alleged and the amount alleged, if you believe that he was sued in the manner alleged, and that judgment was rendered against him and execution issued and the property sold, why then it rests upon him to show that those proceedings were illegal, and I charge you now, as I have already done, that that record cannot be attacked collaterally in this case. The records of a court are not to be attacked collaterally unless there is evidence that there was total lack of jurisdiction on the part of the court, but I charge you now that there is sufficient jurisdiction on the part of the court, and the only way that this could have been attacked was by proceedings to set aside the judgment. You will take the testimony. The plaintiffs are bound to make out the case by the preponderance of the evidence. If the plaintiff has made out his case by the preponderance of the evidence, yon will give him the amount he asks for. If you think that he has failed to make out his case by the greater weight of the evidence, you will find for the plaintiff whatever amount he asks, and if you think he is entitled to damages, you will say how much. If you find for the defendants, say: “We find for the defendants.”</p> <p>Mr. Mooney: If the judgment shows that that is conclusive evidence of indebtedness. The Court: Yes, if there is a judgment proved before you by a competent Court, and that judgment not appealed from, that is conclusive evidence of the judgment obtained. Mr. Mooney: I will ask your Honor to charge the jury that where the possession is lawful, the taking a possession, a demand is necessary; but if it is unlawful, a demand is not necessary. The Court: Yes, sir, that is the law. Where the possession is lawful, a demand for the return of the property is necessary before suit can be brought.</p> <p>The jury found for the defendant, and the plaintiff appeals, on the following exceptions:</p> <p>1. In refusing to allow plaintiff to amend his complaint by striking out all alleged therein with reference to the judgment of J. E. Knight v. J. Cothran, said matter being redundant and irrelevant.</p> <p>2. In refusing to allow plaintiff to testify as to the way in which he had been damaged by reason of the seizure of his property by the defendant, said testimony being relevant and responsive to the allegations of his complaint.</p> <p>3. In ruling admissible the question of attorney for defendants asked the plaintiff on cross-examination: (1) “Did you owe Mr. Knight anything for supplies furnished you by him to make that crop?” (2) “You bought it (guano) from that man over there (G. H. Mahon)?” said questions being irrelevant, calculated only to confuse the minds of the jury, and not responsive to any issue in the case of law or fact.</p> <p>4. In allowing, over objection of plaintiff, the attorney for the defendant to contradict plaintiff by the witness, G. H. Mahon, who testified: “I never sold him a sack of guano in my life;” said matter being irrelevant.</p> <p>5. In admitting in evidence the alleged record in the case of J. E. Knight v. J. R. Cothran, being that referred to in the answer, because it was not the judgment of the trial justice rendered in said cause, nor any evidence there of the original papers or the book which the law requires him to keep, “being the highest and best evidence of the proceedings before him.”</p> <p>6. In holding that the return of the trial justice for the purpose of the appeal from the judgment rendered by him as alleged in the case of J. E. .Knight v. J. R. Cothran, which appeal had been abandoned, was a párt of the record, and admissible in evidence in this case.</p> <p>7. In ruling upon the question of admissibility of said record: “I cannot hold that the trial justice had no jurisdiction. There is sufficient evidence on the face of the record that he had jurisdiction to justify my holding that there was a prima facie right of jurisdiction, and that appearing on the face of the record, a collateral attack upon it would not be proper.” Whereas he should have held that said alleged judgment was a nullity upon its face, in that it appeared, from an inspection thereof, that the trial justice court did not acquire jurisdiction of the person of the defendant therein, and was otherwise invalid for the following reasons: (1) Judgment for more than $25 being, demanded, defendant had twenty full days before judgment could be rendered against him, and the said alleged judgment, having been rendered on the day said summons was issued, was null and void. (2) The affidavit alleged to have been made by plaintiff therein, upon which said trial justice is alleged to have made said summons returnable the same day it was issued, was insufficient, and failed to comply with the provisions of the Code, in that the facts upon which plaintiff based his apprehension and belief were not stated therein. (3) The alleged record failed to show that the testimony of the witnesses, if any, were reduced to writing and signed by them, or that the plaintiff therein had proved his case, as required by law. (4) There was no proof, by return of the officer or party serving the papers or otherwise, that a copy of said affidavit was served with the summons, as required by law.</p> <p>8. In sustaining the objection of the attorney for the defendant to the following question asked the plaintiff in reply: “At the time this paper, the summons, was served upon you, was there any other paper served?” The purpose being, as stated at that time, to show that the plaintiff — the defendant in that action — was not served with a copy of the affidavit upon which the trial justice shortened the time, and which subd. 16 of sec. 88 of the Code requires, “shall be served with a copy of the complaint.”</p> <p>9. When asked by plaintiff’s attorney to rule upon the admissibility of the execution, in holding: “I make the same ruling as to the execution that the whole return be admitted in evidence.” Whereas said ruling was not erroneous only, but entirely inapplicable to the execution, which should have been excluded for the reason, that being directed only “to any lawful constable,” it did not authorize, and, therefore, could not justify, the taking of the property in question by the defendants or either of them.</p> <p>10. In sustaining the objection of the attorney for defendant to the question asked William Scott, the trial justice who rendered the alleged judgment in case of Knight v. Cothran: “Who was your regular constable at that time?” The purpose being to show that the defendant, Robert Coker, was not a regular constable, and was not justified, therefore, in taking plaintiff’s property under the said alleged execution.</p> <p>11. In sustaining the objection of the attorney for the defendants to the question propounded W. D. Metts, clerk of the court, who had in his hand magistrates and constables’ roll kept in his office: “Will you look in that book and state — ” Thereby interrupting attorney for plaintiff, and preventing him from showing by said book that neither of the defendants had enrolled or filed the bond of a constable elected or appointed, as required by Rev. Stat., § 783, sub. 11.</p> <p>12. In charging the jury that the reason alleged by plaintiff of the wrongful taking and withholding of his property by the defendants, was “that he received a summons requiring him to appear before ’Squire Scott to answer to the complaint for $64.75, and that execution was issued on that same day and placed in the hands of Coker, the township constable for Trial Justice Scott, and that on that same day he seized the said property in the possession of the plaintiff.” Said statement being wholly unsupported by any allegation in the pleadings or evidence in the cause. On the contrary, plaintiff alleges in paragraph 1 of his complaint such facts as the cause of the unlawful detention of his propertj^ by the defendants, “as they allege.”</p> <p>13. In charging the jury that the only way the alleged judgment of Knight v. Cothran could be attacked was “by proceedings to set aside the judgment.” Whereas this being a judgment, if judgment at all, of an inferior court, jurisdictional facts alleged in the record might be controverted on trial.</p> <p>14. In charging the jury that “the records of a court are not to be attacked collaterally unless there is evidence that there was total lack of jurisdiction on the part of the court.” Whereas he should have held that the court of trial justice being an inferior court, it is not necessary for one who assails its validity to produce evidence of total lack of jurisdiction, but, on the contrary, all facts necessary to give jurisdiction must appear affirmatively upon its face.</p> <p>15. In charging the jury: “I charge you now that there is sufficient jurisdiction on the part of the court” (trial justice). Whereas he should have held that if the jury believed the evidence of the plaintiff that he was not served until 11 o’clock, one hour after the time fixed for trial in the summons, he had a right to disregard it, and any judgment rendered against him would be void.</p> <p>cites: Amendments: Code, 181. Evidence: Cothran v. Knight, 22 S. E. R., 596. T. J. Books: Rev. Stat, 892; 7 S. C., 224; 17 S. C., 75. Record and Jtidgment: Code, 88, sub. 16; 21 S. C., 586; 6 S. E. R., 302; Code, 358; 24 S. C., 164; Freem. on Judg., 123, 522; Rev. Stat., 904; 39 S. C., 481; 13 S. C., 198; 12 A. & E. Ency., 148; Rev. Stat., 900; 17 S. C., 5. Pleading: 15 S. C., 268; 19 S. C., 65; 17 S. C., 514; 20 S. C., 589. Attacking Judgment: 24 S. C., 398; 40 S. C., 193; 41 S. C., 80; 28 S. C., 119.</p> <p>cites: Amendments: 1 A. & E. Ency., 555; 18 S. C., 385; 26 S. C., 474; 9 S. C., 330. Record: Rev. Stat., 892; 17 S. C., 75; 37 S. C., 517; Code, 302, sub. 2. Jurisdiction: 1 A. & E. Ency., 182; 13 Ohio, 563; 2 Grant Pa. Cas., 422; 23 Am. St. Rep., 253; 120 Ind., 520; 130 Ind., 485; 16 Ind., 99. Attacking Jzidgment: 6 Am. St. Rep., 550; Black on Judgt., 250; 1 Strob., 1; 10 Rich., 317;' 9 Wall., 23; 62 Am. Dec., 330, 331; 31 A: D., 478; 62 A. D., 333; 1 Bile on Judgt., 252; 1 Bail., 295; 3 Strob., 108; 47 A. D., 383; Hur. on Ex., 404; 1 Pet., 155; 17 S. C., 75; 62 Am. Dec., 330; 79 Mo., 504, 302; 25 Am. St.,-637; 57 Texas, 209; 77 Texas, 283.</p>

Two actions, one by Rowell K. Kelly against George E. Kennemore, and the other by George S. Barr against same defendant, both in claim and delivery in trial justice court, for one mule. Judgment for plaintiffs. Defendant appealed to Circuit Court, which reversed judgment below.

<p>The facts are fully stated in the following decree:</p> <p>•In the month of May, 1895, this action was commenced by Bou B. Covington, as administratrix of the personal estate of Preston Covington, deceased, and in her own right as widow of said intestate, offering to account and praying for a partition of his real estate, the one-half to her and the other half to his collateral heirs, he having left no lineal descendants, but having left two brothers and children of one deceased brother and two deceased sisters, in all six nephews and two nieces. The complaint alleges that Preston Covington left a small personal estate and three tracts of land, viz: 1. One tract of sixty-nine acres, more or less, called the home place. 2. A tract of sixty-seven acres, more or less. 3. A tract of 212 acres, more or less, all in Marlboro. The joint answer of the defendants, ten in number, raises no issue, and joins in the prayer for partition and accounting. Accordingly, on the - 8th day of June, 1895, the order for a writ in pártition was granted by the Circuit Judge in term time, and on the 7th day of August, 1895, the writ was issued by the clerk, directing five commissioners named therein to execute the same, the tracts being stated therein to contain sixty-nine, sixty-five, and 212 acres, respectively. On the 16th day of August, 1895, the commissioners made their return, allotting to the widow the sixty-nine acres, valued at $3,450, which is at the rate of $50 per acre. To all the other heirs — ten in number — they allotted the tract of sixty-five acres, valued at $2,600, which is $40 per acre, and the tract of woodland they returned as 230 acres, valued at $1,380, at the rate of $6 per acre; the two tracts thus allotted to the ten heirs they recommended to be sold for partition, and for the purpose of equalization they recommended that the other heirs pay to the widow $265. The partition thus made by them was: To the widow, sixty-nine acres, $3,450; to the other heirs, sixty-five acres, $2,600; 230 acres, $1,880 — total to other heirs, $3,980; total real estate, $7,430. Widow’s share, one-half, $3,715; value of her tract, $3,450 — balance due by heirs, $265. Exceptions were duly filed to this return by the ten defendants upon the grounds that the widow’s tract was undervalued, and the allotments to the defendants overvalued, and because the attempt at equalization should not be made until after the sale, by which alone the true value of the lands allotted to the defendants could be ascertained.</p> <p>On hearing the return, the exceptions, and argument thereon, his Honor, Judge Ernest Gary,-on 26th September, 1895, confirmed the return, and decreed the equality as recommended by the commissioners, and ordered the land to be sold in November, 1895, and that the 230 acres be sold in two or more separate tracts, if so desired by counsel or their clients. On the 5th day of October following, the defendants’ counsel served on the counsel for the widow exceptions to the decree of confirmation, and intention to appeal therefrom upon three grounds, the substance of which is, that the widow is entitled to one-half of the real estate, and the defendants to the other, and a sale of the undivided half was necessary to enable equality to be fairly decreed.</p> <p>In order, however, to enhance the price of the sale of the 230 acres of woodland, the attorneys for the defendants had it surveyed and divided into four parts, and a plat of the same made for the use of the clerk of- the court on day of sale, showing the tract to contain 237 acres. Accordingly, on the first Monday in November, the tract was by this plat sold in four parcels. The first offered for sale was a parcel of forty-nine acres, called tract No. 1. The attorneys for the plaintiff and defendants and some of the defendants were present at the sale. When the first tract of forty-nine acres was offered, Mr. Knox Livingston, as attorney for the estate of Peter T. Smith, announced from the block that he had learned that this part of the land probably belonged to the heirs of Peter T. Smith. This was a surprise, as it is alleged, to counsel for the plaintiff and for the defendants, and to the defendants themselves. Nevertheless, the forty-nine acres were sold, and bid off by Joel Covington, a brother of the deceased, and a defendant, for the sum of $125. He has not complied, and will not be asked to comply with, the terms of sale. That tract is lost to defendants. Mr. Livingston then announced that no claim was made to the balance, and the sale proceeded. Tract No. 2, 59J acres, brought $128; tract No. 3, sixty acres, brought $123; tract No. 4, sixty-eight acres, brought $145. This was on the 4th day of November, and on November 6th, the attorneys for the defendants served notice of a motion for a new trial of the issues raised upon the return of the commissioners in partition, upon the ground of newly-discovered evidence, to wit: in that the sale disclosed the fact that the commissioners had greatly overvalued the so-called 230 acres, and because forty-nine acres of it was claimed by the estate of Peter T. Smith. Inquiry was made, and the information given by Mr. Livingston led to the discovery of the fact that in 1882 Preston Covington sold and conveyed to Charles Welch seventy-one acres of land, which embraces this forty-nine acres, according to a survey made after the discovery of this deed, which has never been recorded. The surveyor had this deed before him on this survey, made November 18,1895, and had with him Charles Welch and Frank Stanton, who know the lines and boundaries of the deed of 1882 to Charles Welch. The surveyor, James Kirkpatrick, made this survey, and also made the survey before the sale by which the land was sold. He certifies that the tract returned by the commissioners as containing 230 acres, and found by him to contain 237 acres, embraced this forty-nine acres, which is the property of the estate of Peter T. Smith’s heirs by purchase from Charles Welch, and that the woodland belonging to the estate of Preston Covington is by accurate calculation only 188 acres.</p> <p>Accepting this as correct, and leaving undisturbed the partition as made in the return and confirmed, we have this result: tract of sixty-nine acres to widow, $3,450; to other heirs, sixty-five acres, $1,806; tract No. 1 (of the 237) forty-nine acres (lost); tract No. 2 (of the 237) 59 J acres, $128; tract No. 3 (of the 237) sixty acres, $123; tract No. 4 (of the 237) sixty-eight acres, $145; total real estate, $5,652. Of this the widow ought in fairness to receive one-half, $2,826; but her share decreed to her is $3,715, leaving to the other heirs but $1,937 — that is, nearly three-fourths to the widow and a fraction over one-fourth to the other heirs. This, in equality, should not be, and will not be sanctioned by a court of equity, unless bound to do so by some rigid rule of practice, or unless the parties seeking relief are estopped by their own conduct. The motion in this case by the defendants is for a new trial of the question of confirmation of the return of the commissioners, upon the ground of newly-discovered evidence, going to show a mistake of the commissioner as to the number of acres in the alleged 230 acres of woodland, and gross error as to the value of the same. A motion of this kind in an equity cause is made, heard, and determined in the same manner as an application for a new trial in a case at law, and that is by motion, supported by affidavits, by documentary or written evidence.' It must appear that the evidence is pertinent and material, was at the previous hearing unknown to the moving parties, and could not have been discovered by the exercise of reasonable diligence. The affidavits submitted by the defendants, the survey and certificate of the surveyor, and the newly-discovered unrecorded deed of seventy-one acres of land made by Preston Covington to Charles Welch, in 1882, satisfy me that the evidence proposed is pertinent and material, was unknown to all the parties and their counsel and the commissioners at the time of partition, and at the hearing of the question of confirmation, and that carelessness in not discovering it until after the sale, cannot be reasonably-charged against the defendants. I am satisfied, also, that the evidence is probably true — in fact, it is not denied at the hearing that the deed to Welch covers the forty-nine acres bid off by Joel Covington; but, on the contrary, was stated, and was not denied, that one of the heirs of Peter T. Smith had recently sold this land to a purchaser, and that the plaintiff’s counsel drew the title deed, having before him the Welch deed as a guide — this, too, pending the controversy. The price of the 188 acres of land at the sale was less than $3 per acre; but this can scarcely be called newly-discovered evidence. It only demonstrates the hazard of accepting and confirming a partition such as this, and the chances of doing injustice thereby.</p> <p>I am urged to refuse this motion upon the ground that the forty-nine acres were known to Mr. W. H. Manning and others to have belonged to P. T. Smith, who is said to have once had a steam mill on it, or to have gotten saw timber from it. In a large body of pine timber land, such as this, such a thing might have occurred without bringing home to the collateral heirs of Preston Covington the knowledge of a conveyance, and without informing them of the true dividing line, or that only 188 acres remained. Certain it is, that the commissioners in partition seem not to have known of this, and they were most of them from the neighborhood, it is to be presumed; and they went upon and examined the land, and returned it as 230 acres. The counsel in the case knew nothing of this conveyance, the surveyor knew nothing of it, nor did the heirs of Covington know of it. I must conclude from the affidavits, therefore, that it was unknown to the parties to this cause and their counsel, without blame or carelessness on their part.</p> <p>As to the materiality of the evidence, there can be no question. The counsel for the plaintiff rely, in opposing the motion, upon the cases of Goulding v. Goulding, in 8 Rich. Bq., page 82, and upon the case of Buckler v. Farrow, Rich. Bq. Cases, 178. It is sufficient to say, that neither of these cases involves the question of after-discovered evidence. In Goulding v. Goulding, the widow accepted the return of the commissioners without objection, and acquiesced in the confirmation for a year, and not until the sale of the land allotted to the heirs, at an enhanced price, did she interpose an objection and ask to share the benefit of this increase, after a year’s acquiescence in the judgment of confirmation. As might have been expected, the Court refused the request. In the case of Buckler v. Farrow, after the commissioners had divided and equalized the land, a motion was made to have the officer of the Court, the commissioner, to review their work, and to fix an equalization; but the Court refused, because it could not be done under the statute and the practice of the Court. Neither case is applicable to the one before me, because this is a motion, upon after-discovered evidence, to reopen the question of confirmation; and, besides, the defendants have been most prompt, diligent, and constant in resisting the confirmation, and, since the judgment, in seeking relief against it. I am not called upon to reverse Judge Gary for supposed error committed by him with the light before him, but only to say whether or not that confirmation should be set aside, and the defendants be permitted to submit to the Court, at another trial, the after-discovered evidence laid before me, and this privilege I feel should be granted them. It will be for the Court, on this new trial, to decide the controversy according to the law and the evidence.</p> <p>It is, therefore, ordered, adjudged, and decreed, that the judgment of confirmation of the return of the commissioners in this case, rendered and filed on the 26th day of September, 1895, be set aside, and a new trial of the matters therein involved and adjudged be granted, but without prejudice to the titles of those who purchased land at said sale, complied with the terms thereof, and received conveyances therefor.</p> <p>From this decision the plaintiff appeals, on the following exceptions:</p> <p>I. Because the motion for a new trial was not the proper remedy in this case.</p> <p>II. Because his Honor, the presiding Judge, was without authority or jurisdiction to grant a new trial.</p> <p>III. Because the matters involved in the motion for a new trial were res adjudicata, under the decree of Judge Gary, overruling exceptions to and confirming the return of the commissioners in partition.</p> <p>IV. Because his Honor, the presiding Judge, erred in holding that the return of the commissioners in partition could be set aside and annulled, after it had been confirmed by Judge Gary.</p> <p>V. Because his Honor erred in not holding that the return of the commissioners was conclusive between the parties, especially where the same had been confirmed, and no appeal taken.</p> <p>VI. Because his Honor erred in not holding that when the return was made and confirmed, it became a decree of the Court, and could only be questioned as any other decree, to wit: by appeal.</p> <p>VII. Because his Honor erred in not holding that, until the decree confirming the return of the commissioners was reversed or set aside, it was binding on all the parties.</p> <p>VIII. Because his Honor erred in not holding that, even admitting the allegations contained in the affidavits submitted by the defendants on this motion, they had had their day in court, and could not now be heard to establish the rights of the parties.</p> <p>IX. Because his Honor' erred in not holding that the Court had no authority to grant a new trial, the only object and effect of which would be to attempt to re-equalize and adjust the shares or interests of the different parties, which, it is respectfully submitted, the Court had no authority to do.</p> <p>X. Because his Honor erred in not holding that, even if the matter contained in said affidavits be true, the alleged newly-discovered testimony is not material, in that it cannot affect the issues in this cause.</p> <p>XI. Because his Honor erred in not holding that, by not appealing from the order confirming the return of the commissioners, and by assenting to the sale, and the order confirming the same, the defendants were estopped from asking relief in the premises.</p> <p>XII. Because his Honor, the presiding Judge, erred in holding that the forty-nine acre tract was lost to the defendants, when, as matter of fact, it appears that no effort has been made to force the purchaser to comply with his bid, or to test the validity of the claim of a third party thereto.</p> <p>XIII. Because his Honor erred in holding that the facts stated in the affidavits could not, with due diligence, have been ascertained; whereas it is respectfully submitted that the record of the deed from C. A. Welch to P. T. Smith, reciting the conveyance from Preston Covington to C. A. Welch and the open and notorious possession of P. T. Smith were sufficient, at least, to put the parties upon the inquiry.</p> <p>XIV. Because his Honor erred in holding as matter of fact that a part of the land had been conveyed by one of the heirs of Peter T. Smith pending the controversy; whereas it is respectfully submitted that there is not a scintilla of evidence to sustain such finding.</p> <p>XV. Because his Honor erred in holding that the commissioners in partition were ignorant of the conveyance from Preston Covington to P. T. Smith; whereas it is respectfully submitted there is not the slightest proof that the commissioners were themselves ignorant of the fact, and, on the contrary, it appears that one of the boundaries called for in the writ in partition was the land of P. T. Smith, and one of the commissioners owned land adjoining thereto.</p> <p>• XVI. Because, even admitting that the parties to the action were not aware of the facts set forth in the affidavits submitted, his Honor erred in imputing like ignorance to the commissioners, when there is not an iota of testimony tending to establish such alleged ignorance on their part.</p> <p>XVII. Because his Honor erred in holding that the commissioners had made a mistake; whereas it is respectfully submitted that no such conclusion can be drawn from the alleged newly-discovered evidence submitted on the motion for a new trial, and there is no testimony tending to show such mistake on the part of the commissioners, but the same develops, if anything, only a mistake and disappointment on the part of the defendants.</p> <p>XVIII. Because his Honor erred in holding that the mistake was made by the commissioners; whereas it is respéctfully submitted the mistake, if any, was the mistake of the defendants and their attorneys, and was produced by the incompetency of the surveyor employed by them to divide the land for the purposes of sale, in accordance with the power granted in Judge Gary’s order.</p> <p>XIX. Because there is no testimony showing, or tending to show, that the commisssoners made a mistake, or that they were guilty of fraud or corruption, and his Honor erred in granting a new trial, when such proof was not submitted to him.</p> <p>XX. Because his Honor erred in admitting in testimony the ex parte survey and the ex parte statements of the surveyor employed by the defendants.</p> <p>cite: New Trial: Rev. Stat., 2228; Code, 286, 287; Rich. Eq., 180; 1 Rich. Eq., 6; 8 Rich. Eq., 82; 17 A. & E. Ency., 777; 14 S. C., 517; 3 Rich. Eq., 541; 5 Rich. Eq., 425; 2 Hill Ch., 353; 16 S. C., 126; 14 S. C., 329; 16 Id., 554; 17 Id., 40; 19 Id., 157; 37 Id., 512. Return oj Commissioners: 2 McC. Ch., 118; 4 DeS., 85; 1 Rich. Eq., 6; Rich. Eq. Cas., 180; 8 Rich. Eq., 82; 13 Id., 356; 30 S. C., 459; 33 S. C., 402. Mistake.• Bail. Eq., 343; Id., 492; 2 Pom. Eq. Jur., 839; 15 A. & E. Ency., 645; Kerr on Fraud and Mistake, 406, et seg.; 14 S. C., 458; 2 Strob. Eq., 154. Newly-discovered Evidence: 15 S. C., 40; 16 Id., 116; 33 Id., 403; 16 Ves., 350. -</p> <p>cite: New Trial: 16 S. C., 116; 26 S. C., 581. Newly-discovered Evidence: Same cases and 8 S. C., 63; 19 S. C., 556; 11 Rich. Eq., 70. Discretion: 10 S. E. R., 963; 26 S. C., 101; ,82 Ga., 242; 16 A. & E. Ency., 683, note 2.</p>

Action by B. I. Jennings against Florence S. Hare and W. C. Black, for foreclosure of two mortgages. The issues were referred to the master, who made the following report: The master, to whom it was referred to hear and determine the issues of law and fact raised by the pleadings in the above stated case, respectfully begs leave to report that he has held references, and taken the testimony herewith submitted.

Action for partition by B. E. Miller, Walter C. Miller, J. . Clarence Miller, and Bessie D. Miller against Benjamin Graham. Held: the warranty clause cannot enlarge the estate granted; in Wright v. Herron, 5 Rich.

<p>Action by Esther Michalson against Smart Myrick, sr., Smart Myrick, jr., J. Angus Myrick, and David Myrick, for possession of real estate. All issues, by consent, were referred to the master, who made the following report:</p> <p>The master, to whom the above cause was referred to hear and determine all of the issues, both of law and fact, begs leave to report:</p> <p>This is an action for the recovery of real estate, the plaintiff basing her right to recover upon a deed executed by the sheriff of Barnwell County, bearing date the 4th day of February, 1895. The defendant, Smart Myrick, sr., in his answer, sets up two defenses: First, a general denial; and second, that he is entitled to a homestead in the land mentioned and described in the complaint. The defendants, Smart Myrick, jr., J. Angus Myrick, and David Myrick, by their answer, put in a general denial, and plead the statute of limitations. The facts, as they appear from the evidence, are as follows:</p> <p>Finding of fact: I. That on the 2d day of January, A. D. 1880, the said defendant, Smart Myrick, sr., being the owner in fee of the lands mentioned and described in the complaint herein, in consideration of natural love and affection, made and executed a deed thereof to his wife, Matilda Myrick, and to his sons, Smart Myrick, jr., J. Angus Myrick, and to his grand-son, David Myrick. The habendum clause of said deed reading as follows: “To have and to hold all and singular the said premises unto the said Matilda Myrick, trustee as aforesaid, for and during the term of her natural life, and at her death to be equally divided between my said sons, Smart and J. Angus, and my grand-son, David Myrick, share and share alike, the child of any deceased child to take the share the parent would take if living at the time of the death of the said Matilda Myrick.” The word “heirs” does not appear in said deed except in the warranty clause.</p> <p>II. It further appears from the record in the case of Isaac Michalson v. Smart Myrick, sr., that the said Smart Myrick, sr., became largely indebted to the said Isaac Michalson and others during the years 1890, 1891, and 1892, and that action was commenced thereon on the 10th day of March,-1894, and that on the 4th day of November, 1894, judgment was duly rendered in favor of the said Isaac Michalson against the said Smart Myrick, sr., for the sum of $722. Execution was duly issued on said judgment and lodged with the sheriff of said county for enforcement. Thereafter the said sheriff levied upon the property mentioned and described in the complaint as the property of the said Smart Myrick, sr., to satisfy said execution, and after due and legal advertisement sold said property at public auction on the 4th day of February, 1895, to the plaintiff, Esther Michalson, for the sum of $510. The plaintiff complied with her bid upon the day of sale, and the sheriff thereupon executed and delivered to her his deed of conveyance to said property.</p> <p>III. That the said Matilda Myrick, wife of the said Smart Myrick, sr., died on or about the day of August, 1890.</p> <p>IV. The master also finds that soon after the summons and complaint in the action of Isaac Michalson v. Smart Myrick, sr., was served upon the said Smart Myrick, sr., that he, for the purpose of evading the payment of said debt, and defrauding his said creditor, executed and delivered a deed of conveyance of the land mentioned and described in the complaint herein to his codefendants, the consideration expressed in said deed being for natural love and affection and the sum of three dollars. The habendum clause in said deed being as follows: “To have and to hold all and singular the premises unto the said Smart Myrick, jr., Angus Myrick, and Dave Myrick, the last mentioned one (Dave Myrick) to only take one-fourth of said estate, their heirs and assigns forever. Provided, always and nevertheless, it is the true intent and meaning of the presents, that I, the said Smart Myrick, sr., am to retain the possession of the said tract of land for and during my natural life. And provided, further, that the true intent and meaning-of these presents that the said Smart Myrick, jr., and Angus Myrick are to hold their shares of said estate (after my death) for and during their natural lives, and after their death to the lawful issue of their body. And provided, further, that the share of the said Dave Myrick, after his death, shall descend to his heirs at law.” Said deed is dated the day of April, 1894, and was duly probated on the 13th day of April, 1894, and recorded in the office of R. M. C. for said county on the same day.</p> <p>V. That the land mentioned and described in the complaint is worth about $800.</p> <p>VI. It further appears from the evidence that Smart Myrick,- sr., is about eighty years old, and that he has never married since the death of his wife, the said Matilda Myrick, and has no children except his codefendants herein, and that his codefendants are all over twenty-one years of age and the heads of families, and that they and their families are in possession of the land in dispute, and that the said Smart Myrick, sr., is living with and being supported and cared for by his said codefendants.</p> <p>Matters of law: I. That there being an entire absence of words of inheritance in the deed of 1§80 from Smart My-rick, sr., to his wife, Matilda Myrick, and his codefendants in this action, that the said Matilda Myrick took only a life estate in the land mentioned and described in the complaint herein, with remainder after her death to the defendants, Smart Myrick, jr., J. Angus Myrick, and Dave Myrick, during their lives, the fee remaining in the grantor, Smart Myrick, sr.</p> <p>II. That the execution and delivery by Smart Myrick, sr., to his codefendants of the deed dated the day of April, 1894, operated as a legal fraud upon the rights of his creditors to have the land mentioned and described therein subjected to the payments of his debts, he being at that time largely indebted, and said deed having been executed for the purpose of evading payment of the same, and the consideration expressed therein being only for love and affection. Said deed is, therefore, null and void, and conveyed no estate to the parties therein named, but their interests remained as they were prior to the execution of said deed. See Súber v. Chandler, 18 S. C., 528-529; Ferguson v. Harrison, 41 S. C., 341.</p> <p>III. That at the sale made by the sheriff on the 4th of February, 1895, in the case of Isaac Michalson v. Smart Myrick, sr., of the land mentioned and described in the complaint, the purchaser, the plaintiff in this action, took only the interest that the defendant, Smart Myrick, sr., had therein, which was the fee, the life estate remaining in his codefendants, and that by said sale the plaintiff, Esther Michalson, was subrogated to all of the rights of the plaintiff in execution. See 'McGee v. Jones, 34 S. C., 147.</p> <p>IV. That this being an action strictly upon the law side of the Court to recover possession of land, it was not necessary for the sheriff to make a return of nulla bona upon the execution in the case of Isaac Michalson v. Smart Myrick, sr., but that he could proceed to sell said land as being the property of said defendants. See Thomas & Ashby v.Jeter, 1 Hill, 380; Smith v. Culbertson, 9 Rich., 106.</p> <p>V. That the defendant, Smart Myrick, sr., is not entitled to a homestead in the land in dispute, he not being the head of a family, in the meaning of the Constitution of this State; and if he were the head of a family, he would not be entitled to a homestead in said land, as possession of the same could not be given to him, he having conveyed the life estate therein to his codefendants under the deed of 1880.</p> <p>At the argument of this case before the master, the plaintiff’s counsel, in substance, contended that the codefendants of Smart Myrick, jr., took a life estate under the deed of 1880 and the fee under the deed of 1894, and that when the two estates met, merger took place, and that thereupon all rights of the parties under the deed of 1880 were destroyed. They then proceeded to remove the deed of 1894 from the path of their client’s right to recover, by showing that said deed was null and void, on the ground that it operated as a legal fraud upon the rights of the creditors of the said Smart Myrick, sr. Having disposed of the deed of 1894 by declaring it null and void, they then contended that the plaintiff, Esther Michalson, took both the life estate and fee in said land under the sale made by the sheriff, and that she is, therefore, entitled to the possession of same. There is no doubt the codefendants of Smart Myrick, sr., took a life estate under the deed of 1880, and would have taken the fee under the deed of 1894 if it had not been null and void, and also that merger of the two estates would have taken place, provided said deed had been valid. But said deed being void ab initio, merger did not take place; and even admitting that merger did take place, it was only temporary, and as soon as the deed of 1894 was declared null and void, the life estate and the fee would have separated and the parties reinstated to their rights as they existed under the deed of 1880. If the deed of 1894 is null and void as to one, it is null and void as to all. It cannot be held to be null and void as to the plaintiff’s rights and not null and void as to the rights of the defendants prior to its execution.</p> <p>The plaintiff cannot blow hot and cold at the same time. It is difficult to understand how the codefendants of Smart Myrick, sr., could have lost the life estate in said lands by merger under a deed that is null and void. When a deed is declared null and void, it must be considered as having never existed, and without force or' effect. The correct mode of arriving at a solution of this matter is as follows: What interest did Smart Myrick, sr., have in said land before he made the deed of 1894, and which was subject to levy and sale for the payment of his debts? It is admitted that he had only the fee, the life estate being in his codefendants. Therefore, when he executed said deed of 1894, he merely conveyed to the grantees therein the fee and nothing more; and if said deed is null and void, then the purchaser at sheriff’s sale took only the interest that the said Smart Myrick, sr., held in said land prior to the execution of said deed. The mere fact that Smart Myrick, sr., stated in the deed of 1894 that he reserved a life estate in said land to himself did not give it to him, for it was not his to reserve, as he had previously, under the deed of 1880, conveyed the life estate to his codefendants, and they never conveyed it back to him. The plaintiff’s action is not brought upon the equity side of the Court, to have the deed of 1894 set aside and cancelled of record on the ground of fraud, but she has brought her action upon the law side to recover possession, treating said deed as being null and void, as having never existed. Therefore, it does seem strange that, although she claims that said deed is null and void, yet she in the same breath claims that it conferred a greater estate upon herself than Smart Myrick, sr., really had in said land himself.</p> <p>It will be well to state here, that the defendants did not introduce the deed of 1894 in evidence, and do not claim under it, but that the same was introduced in evidence by the plaintiff. The master, therefore, in brief concludes as follows: That the plaintiff, Esther Michalson, is not entitled to recover possession of the land mentioned and described in the complaint herein, and that she be required to pay the costs of this action.</p> <p>This report came before Circuit Judge on various exceptions by plaintiff. The following is his decree:</p> <p>This action canje before this Court upon the pleadings, the report of the master, and exceptions thereto filed by plaintiff. After mature consideration, I am of the opinion that the report of the master is correct, and that exceptions thereto should be overruled. I think that the conclusion of the master can be supported upon grounds other than those stated by him, but I need not refer to them, as the report is sufficient. Wherefore, it is ordered, adjudged, and decreed, that the exceptions oi the plaintiff to the conclusions of the master herein be, and hereby are, overruled and dismissed, and that said conclusions are hereby adopted and made the judgment of this cause, and the complaint herein is dismissed. This order does not affect, nor is it intended to affect, the questions of the fee in the land and plaintiff’s right to the possession thereof, if any, before the termination of the life estate now held by Smart Myrick, jr., J. Angus Myrick, and David Myrick, defendants above named.</p> <p>cite: 16 S. C., 330; 28 S. C., 496; 18 S. C., 529; 38 S. C., 277; 5 Rich. Daw, 545.</p> <p>furnished Reporter with no argument.</p>

Action by T. E. Strong, as executor of Jesse Beam, against Thomas Weir, David Weir, jr., David J. Weir, and Sarah J. Weir. The pleadings are fully stated in the opinion. The issues were referred to J. C. James, special referee, who made the following report: There was considerable testimony taken, amounting to something like forty pages, but much of it was cumulative, and the real important facts can be put in a small space.

<p>Action by Miami Powder Company against Port Royal and Western Carolina Railway Company, for damages to 400 kegs of powder, and for possession of same. The following are the remarks of Judge Benet in granting a non-suit:</p> <p>This is a motion for a nonsuit, upon the ground that there is no evidence that the plaintiff had fulfilled the condition precedent to the bringing of an action of this character— namely, that the consignee should first pay the freight charges, before he can sue the common carrier for damages done to goods in transitu, and on the additional ground that there is no evidence that the powder was injured. This second ground I must overrule. While the proof of injury to the powder is meagre and unsatisfactory, still, such as it is, it is a matter for the jury. Williams, the consignee, does testify that of the 400 kegs of blasting powder in the consignment, a large portion — “from one-third to one-half”— were badly damaged. And as to these damaged kegs, he says: “I don’t think I could have sold them for more than half price.” He describes the condition of the injured kegs as being very badly indented, and as being wet, and adds that a sharp indentation breaks the japanning on the sheet iron kegs; that japanning is intended to prevent rust and dampness; that if dampness gets to the powder, the powder cakes and gets like dust. It is true, that he gives no positive testimony that the powder was actually injured, unless it be where he says that “strings of powder could be seen from the can to the platform.” All the rest of his testimony could only amount to a presumption that the powder inside the indented kegs may have been injured. If the case were to go to the jury, I should particularly direct their attention to the nature of his testimauy, but I should properly leave it to them to say whether or not it was sufficient to satisfy them that the powder was really injured. That the kegs were wet; that they were very badly indented; that sharp indentation breaks the japanning; that kegs are japanned to prevent rust and keep out dampness; that dampness causes blasting powder to cake and get like dust; that the japanning on many of the kegs was broken; that he could not have sold the indented- cans for more than half price — all this, as proof of injury to the powder, may simply amount to a very far-fetched and shadowy presumption arising out of very little and unsubstantial proof of fact; but sufficiency of proof is a question solely for the jury. The case will not go to the jury, however. The motion for a nonsuit must be granted on the other ground — namely, that the consignee, the plaintiff’s agent, did not pay the freight charges before bringing his action. The plaintiff’s witness, Williams, testifies that the freight bill for the powder was $137, and that it was not paid; that the railway agent refused to let him have any of the powder unless he first paid the freight; that he offered to take the uninjured powder, and pay the freight, but that the railway agent said: “No; you must pay the freight on all before you can take it;” that as the freight was not paid, the consignment of powder was left in the depot; and that he does not know what became of the powder.</p> <p>The case of Ewart v. Kerr, Rice, 203, and McMill, 141, is -relied on by plaintiff’s counsel in resisting the motion. The old Court of Appeals, in the year 1839, did lay down the doctrine in that case, that if the property of a freighter was damaged while in the care of the common carrier, to an amount greater than, or equal to, the freight charges, the common carrier’s lien for freight was extinguished, and the freighter or consignee not only had the right to demand the property without payment of freight, but if delivery was refused, such retention amounted to a conversion, for which an action for trover would lie. This was the opinion of-a. divided Court, two of the five justices not concurring, and one of the two — Judge Earle — filing a very strong dissenting opinion. The case was heard over fifty years ago, in the early days of railroads. But even then the doctrine laid down was not in accord with the decisions of the Courts of England and the rest of the United States, nor has it since received support elsewhere. I have been shown no decision of any Court outside of this State holding similar doctrine. So far as I am aware, the invariable rule elsewhere is, that the freighter or consignee must first pay the freight charges, have the goods delivered to him, ascertain the damage he has suffered, and then bring his action. And that I must hold is now the rule in this State, since the decision of our present Supreme Court in the appeal taken in this case after the former trial {The Miami Powder Co. v. Port Royal etc. R. R. Co., 38 S. C., 78). Mr. Justice ■Pope, speaking for the Court in that case, after recognizing the rule laid down in Ewart v. Kerr, says: “But we feel constrained to observe that the more recent decisions of the court of last resort in this State, notably the cases of Shaw v. R. R. Co., 5 Rich., 462, and Nettles v. R. R. Co., 7 Id., 100, seem very clearly to point out the course of duty in a consignee, whose property is injured while in the control of the common carrier, to be to pay all freight charges and then sue the carrier for the injury done him.”</p> <p>What -follows is peculiarly applicable to this case: “As a practical result, we cannot see how the character and extent of injuries to goods can be correctly ascertained by the consignee while the same are in the hands of the common carrier, and hence this consignee is without the proof requisite to establish his claim for such damages.” It was almost impossible for. Williams, the consignee, in this case, to adduce an}*- evidence of injury. His testimony consisted almost entirely of presumptions based upon presumptions, and not of facts proved. If he had had the powder kegs in his .possession, he would have been able to prove what was-the extent of the injury. Following the doctrine announced by Mr. Justice Pope, I am clearly of the opinion that’the plaintiff in this case must suffer a nonsuit, because the con7 signee failed to pay the freight charges before bringing his suit. It seems to me, both as matter of law and as common sense, that before suing for damages, the plaintiff should have paid the freight, obtained possession of the goods,, and ascertained the extent of the injury, if any. To hold otherwise would subject the common carrier to all the trouble and inconvenience so well depicted by the learned Associate Justice, and end by compelling the common carrier to become a retail merchant in self-defense. The motion is granted.</p> <p>Mr. Parker, for plaintiff, asked the Court if he made.aiw ruling that the damage did not exceed the freight charges- — ■ $137. The Court: “No, for Williams stated that he did not ' think he could have sold the damaged kegs for more-than half price. If the whole lot was worth $860, then a third or a half would exceed the freight bill.” Mr. Parker then asked if the ruling as to the nonsuit applied to both causes of action. The Court: “Yes, Mr. Parker, from the nature of both causes of action, my ruling necessarily applies to both.”</p> <p>In accordance with the Judge’s rulings, a formal order of nonsuit was made.</p> <p>From this order plaintiff appeals on following exceptions:</p> <p>1. Because his Honor erred in excluding the testimony of James T. Williams as to the condition of a certain part of the powder, and of the cans containing .the same, when the same were exhibited in Court by Major Ganahl, one of the counsel for defendant at a former trial of this cause.</p> <p>. 2. Because his Honor erred in excluding the testimony of. James T. Williams as to the condition of the powder, and the cans containing it, when the same were delivered to him. for disposition three years after the institution of this suit, by agreement of counsel.</p> <p>3. Because his Honor erred in granting the nonsuit in this cause, so far as such nonsuit affects the first cause of action, it being submitted that there was some testimony, sufficient to be submitted to the jury, to the effect that the goods had been damaged to an extent equal to or greater than the amount of the freight, and that after demand the defendant had refused to deliver the goods to the consignee, who was entitled to the possession thereof.</p> <p>4. Because his Honor erred in holding that it was a prerequisite to an action by the consignee against a common carrier for the conversion of goods, that the consignee had paid the freight due oñ such goods, even though it appeared that such goods had been damaged in transportation to an amount greater than the amount due for freight.</p> <p>5. Because his Honor erred in not holding that, if goods are damaged in transportation by a common carrier to an amount equal to or greater than the freight due, it amounts to a conversion of said goods, for which the common carrier can be held liable, if it refuses to deliver the goods to the consignee, upon demand therefor.</p> <p>6. Because his Honor erred in ordering a nonsuit as to the second, cause of action, it being submitted that there was some testimony sufficient to submit to the jury to the effect that there was damage to the goods in transportation caused by the common carrier.</p> <p>cite: Rice, 203; 2 McM., 141; 8 A. & E. Ency., 977; 6 Whar.,435; 42 Vt., 431; Hutchison on Carriers, sec. 443; 56 N. Y., 198; 6 Rich.. 462: 7 Rich.. 190.</p> <p>cite: Evidence: 3 Wood on R. R., 1939; 2 Rorer, 1273, sec. 3. Res Adjudícala: 38 S. C., 69; 42 Central R. Journal, 90; 117 U. S., 231. Conversion: Angelí on Carriers, secs. 431-3; 2 Rem., 509; 5 Beur., 2825; 24 A. R., 610; 7 Rich., 192. Payment of Freight: 12 N. Y., 515; 5 Rich., 4-6; 7 Rich., 190; 38 S. C., 78.</p>

<p>Action by Eudden & Bates Southern Music House against Catherine W. Sumter, for possession of one piano. The facts are fully stated in the opinion. Verdict for defendant. Plaintiff appeals.</p> <p>cite, on second point: 1 Bail., 546; 2 Strob. Eq., 375; 5 A. & E. Ency., 528; 24 la., 322; 52 la., 406; 34 Miss., 385; 68 Me., 429; 11 S. E. R., 157; 52 Kan., 109; 8 Wash., 630; 50 Kan., 385; 55 N. W. R., 221; 46 N. W. R., 363; 27 S. C., 244; 30 N. W. R., 659; 15 Kan., 219; 19 S. E. R., 761; 16 S. E. R., 916; 17 A. (N. H.), 638; 37 Mass., 20 Pick., 53; 20 Mass., 3 Pick., 262; 1 Rich., 322.</p> <p>cite, on first point: 53 Wis., 211. On second point:. 27 S. C., 240; 5 A. & E. Ency., 528; 5 Hans. ,(N. Y.), 78; 1 Houst. (Del.), 605; 13 111,, 315.</p>

Action in foreclosure by Manus Baum, as trustee of Sophia M. Baum, against Mattie Beard, Mary Beard, James R. Nelson, John B. Nelson, William Nelson, and Joseph B. Nelson, heirs of John J. Nelson. The facts necessary for a full understanding of the questions here raised are stated in the opinion. From the decree of Judge Townsend the plaintiff appeals; cites no authorities. likewise.

<p>Action in foreclosure by F. W. Wagener & Co. against M. C. Kirven. The following is the decree of Judge Gary:</p> <p>This is a suit to foreclose a mortgage of certain real estate in the county of Darlington, alleged to have been executed by the defendant, M. C. Kirven, on the 5th day of February, 1892. The answer of the defendant denies the execution of said mortgage. The case was heard by me upon the pleadings, and the evidence in the cause taken by R. K. Charles, master for Darlington County. It will be observed that the only issue in the cause is one of fact (the execution of the mortgage sought to be foreclosed). The case was fully argued ón the circuit, and since the argument I have carefully considered the evidence, and have observed the signature to the bond, as well as that to the mortgage, under a powerful glass, and have compared the same with other signatures of the defendant, which were admitted to be genuine. The answer having put in issue the execution of the mortgage, the burden of proving its execution rest upon the plaintiffs. The' mortgage was offered in evidence, and is regular in form and purports on its face to have been executed by M. C. Kirven, in the presence of R. E. R. Kirven, a son of the defendant, and T. E. Kirven, a colored man who lived at the time on Mrs. Kirven’s farm. The first witness, R. E. R. Kirven, the son, testifies positively to the fact that he witnessed the execution of the paper, and that he saw his mother sign the mortgage, and that T. E. Kirven was present at the time and also saw her sign it. T. E. Kirven, or Tom Kervin, the other witness, testifies equally as emphatic, “that he did not witness the execution of the mortgage in question, and that the only mortgage he ever witnessed for Mrs. Kirven was to the People’s Bank; that he did not witness mortgage to Wagener & Co.” As between these two alleged witnesses to the execution of the mortgage there may be said to be a stand-off.</p> <p>Now let us consider the testimony of the defendant. She is emphatic that she “did not sign the bond and mortgage to Wagener & Co. That she never signed the mortgage— never signed anything of the kind.” This is a brief statement of the testimony of the actual parties to this transaction, and I may add, it is an unusual and unpleasant spectacle. The son swearing to one state of facts, and the mother and a disinterested witness swearing to an entirely different statement. It will be seen that it is with some difficulty that a conclusion can be satisfactorily reached from these pointed and plain contradictions. Considering, however, that it is • the mother, in the great majority of cases, who makes the sacrifices for the son, and considering how reluctant a mother is to destroy the reputation of a son, I am of the opinion in this case, that the evidence of the defendant should outweigh that of her son, R. E. K. Kirven, and especially so when she is corroborated by Tom Kirven. I am strengthened in this view in the fact, that when the signature to the mortgage is compared with other signatures, which are admitted to be those of the defendant, the signature to the mortgage does not appear to' me to be genuine. In other words, viewing it under the glass, I am of the opinion that the signature to the mortgage is a forgery. This view is also strengthened by the fact that on numerous occasions the said R. E. R. Kirven had imitated his mother’s signature and passed it as genuine. In conclusion, however, I must say, in justice to the plaintiffs, E. W. Wagener & Co., that they were not aware at the time they furnished the money and supplies to R. E. R. Kirven that there was any suspicion about the genuineness of the signature, they acted throughout the whole transaction in good faith, and were simply the dupes and innocent victims of R. E. R. Kirven.</p> <p>For the reasons above stated, I conclude that the defendant, M. C. Kirven, did not execute the mortgage, herein sought to be foreclosed. It is, therefore, ordered, that the complaint of the plaintiffs be dismissed.</p> <p>From this decree the plaintiffs appeal on the following-exceptions:</p> <p>1. Because it is respectfully submitted that his Honor erred in finding, “that as between the two alleged witnesses to the mortgage, R. E. R. Kirven and T. E. Kirven, there may be said to be a stand-off,” it appearing from the testimony in the cause, that T. E. Kirven’s signature as a witness to the execution of the mortgage was declared by two highly intelligent experts to have been genuine; and further, because T. E. Kirven’s testimony to the effect that he had not witnessed the execution of the mortgage was contradicted b}^ an u-nimpeached and disinterested witness, who testifies, that immediately after the execution of the mortgage, T. E. Kirven told said witness that he, Kirven, had witnessed the same; and further, because the testimony shows that T. B. Kirven is a colored man, who, at the time he gave his testimony, was living upon the plantation of M. C. Kirven, and had been living there all of his life, and it is respectfully submitted that it is error to conclude, under these circumstances, that he was a disinterested witness.</p> <p>2. Because his Honor erred in finding, by implication, “that the reluctance of the mother to destroy the reputation of her son,” was a consideration of such force, in this particular instance, as to more than counterbalance her pecuniary interest in the result of this suit.</p> <p>3. Because his Honor erred in concluding that R. B. BKirven was capable of forging his mother’s name to this mortgage, “because on numerous occasions he had imitated his mother’s signature and passed it as genuine,” it not appearing from the testimony that R. B. R. Kirven had anything to gain by signing his mother’s name to this mortgage, or that he had ever signed her name on any occasion, from a corrupt motive or a selfish end; and because it further appears that none of the signatures of his mother, which were confessedly made by R. E. E. Kirven, and introduced in evidence, were recognized by the experts on handwriting as having any resemblance to the signatures to the bond and mortgage in suit, and other confessedly genuine signatures.</p> <p>4. Because his Honor erred in reaching his conclusion that the defendant’s alleged signature to the mortgage was a forgery, without considering any of the testimony in the case except that given by the defendant herself, and by the two alleged subscribing witnesses, as to the mere signing of the bond and mortgage.</p> <p>5. Because his Honor erred in concluding that the signature of the defendant to the mortgage was a forgery, notwithstanding the testimony of two expert witnesses on handwriting to its genuineness, and notwithstanding the admitted fact that the defendant had received the goods to secure the payment of which the mortgage was given, marked in her name, and used the same for her benefit, and notwithstanding the further fact, that a short time after the mortgage became due and payment of the same was demanded by the plaintiffs, she authorized her son, J. P. Kirven, to negotiate with the plaintiffs for the payment or arrangement of the mortgage debt, which he, the said J. P. Kirven, undertook to do, without complaining, or even hinting, that the defendant had never executed the mortgage.</p> <p>6. Because it is respectfully submitted that the overwhelming weight of the testimony is contrary to the conclusion reached by his Honor, that the signatures to the bond and mortgages are forgeries.</p> <p>cite no authorities.</p> <p>cite: 18 S. C., 508.</p>

<p>Action by the Columbia Phosphate Company against the Farmers’ Alliance Store, Silas Yonce, W. T. Walton, J. W. Edwards, S. M. Smith,'J. H. Edwards, W. S. Crouch, B. E. Caughman, W. W. Padgett, W. H. Hazel, and S. E. Ready, on two notes.</p> <p>The following is the charge of the Circuit Judge:</p> <p>Now, Mr. Foreman, right here, you will consider this action dismissed as to the defendant, W. T. Walton. Your verdict cannot affect him one way or the other; and why? because he has demurred to the complaint, and that demurrer has been sustained, and he is practically out of this case. Therefore, you will consider the case with reference to the liability of the Farmers’ Alliance Store, and of all the other defendants named, with the exception of defendant, W. T. Walton. Now, one 6f these notes set up in the complaint and sued upon by plaintiff is dated March 2, 1894, payable to the order of the Columbia Phosphate Company, in the sum of $2,461.27, payable on the 1st of November, 1894, for value received, payable at the Carolina National Bank of Columbia, S. C., with interest after maturity at the rate of eight per cent, per annum. The second note bears the same date as the first, to wit: March 2, 1894; it is pa3'able to the order of the plaintiff, the Columbia Phosphate Company, just as the first note referred to, but it is payable in a different sum or amount, to wit: $2,478.90; it is payable to the order of the same plaintiff, at the Carolina National Bank, in Columbia, for value received, on the 1st of December, 1894, with interest after maturity at the same percentage, eight per cent, per annum. You will see both of these notes are dated the same date, one payable 1st of November, 1894, and the other 1st of December, 1894. Plaintiff alleges that at the time of the beginning of this suit no part of these notes had been paid either by the principal debtor, the Farmers’ Alliance Store, or by the alleged endorsers. Plaintiff alleges that at the maturit3? of the notes they were protested for non-payment, and the endorsers were notified of the protest; the plaintiff, therefore, demands judgment of this Court for the amount due upon these two notes, with the protest fees. Now, it appears here, and it is admitted, that since the commencement of this action, plaintiff has received the sum of $523.54, for which amount the defendants are entitled to a credit on said note as of date, 11 May, 1895; that is admitted by the plaintiff, that if the defendants are liable upon this note, they are entitled to that credit, $523.54, as of date, May 11, 1895. It is alleged by the plaintiff that each of these two notes was signed by S. L. Ready, as president of the Farmers’ Alliance Store, that each of the said notes was endorsed by the other defendants above named, when the notes were delivered to the plaintiff. It is further alleged in the complaint that the consideration of these notes — that is, the matter"for which they were given — was commercial fertilizer, furnished by the plaintiff to the defendant, the Alliance Store.</p> <p>Now, the defendants in their answer- — I am now referring to the pleadings — deny their liability upon these notes; they deny the corporate existence; that is, that the Farmers’ Alliance Store, alleged in the complaint, was chartered by the legislature; they admit that the Farmers’ Alliance Store, at Johnston, S. C., did attempt to execute the two notes referred to in the complaint, and that they -were endorsed as alleged, but that the said notes are not legal or binding upon the maker, the Alliance Store, or the endorsers. They allege further, by way of defense, that the Farmers’ Alliance Store gave a mortgage on the stock of goods, which mortgage was turned over to plaintiff as payment of the notes referred to in the complaint as payment of the plaintiff’s debt; they further allege, that in November, 1894, the Farmers' Alliance Store executed a deed of assignment for the benefit of its creditors; that the plaintiff, the Columbia Phosphate Company, accepted, participated under said assignment, and the defendants were, thereby released of their legal obligation to pay this debt. That is what-1 understand to be the pleadings in the case, according to the complaint and answer.</p> <p>Now, what must the plaintiff prove under these pleadings? First, that this Fanners’ Alliance Store was chartered by the legislature of this State. The plaintiff has introduced here a certified copy of the charter, which I have admitted as evidence, tending to show charter as alleged in the complaint, that they have a charter from the State of South Carolina. They must also prove — you must be satisfied in order for plaintiff to maintain his action — that this debt is due, or some portion of it, on these notes; that the notes were signed by Ready as president of the Alliance Store, and that they were endorsed by these several defendants, except Walton, as alleged in the complaint; not only so, but that the notes were not paid at maturity, and that at maturity of the notes, the bank protested them for nonpayment, and notified these alleged endorsers of that fact. Now, when one endorses a note for another, for a corporation or individual, when the note matures, then it is the duty of the party who holds the note to notify the endorsers if not paid — if they are living in the same place, or where they can get at them, by giving notice at their place of business; if they do not live in the same community, by sending notice of protest by ordinary mail through the post office. When the holder does that, he has discharged the duty devolving upon him by the law. I should have stated to you that the plaintiff must make out his case by what is known as the preponderance, the greater weight, of the testimony. The weight of the testimony you are to judge of in order to recover.</p> <p>Under the pleadings, one of the questions of fact to be submitted to you is, did these endorsers of these notes take a mortgage from the Farmers’ Alliance Store? If you conclude they did, then did they assign and transfer that mortgage to the plaintiff? Well, in order to show that, you must be satisfied that they assigned it and transferred it to the agent or attorney of the Farmers’ Phosphate Company, that in transacting this business, accepting it, he was acting within the scope of his agency as attorney representing the plaintiff. Now, it is alleged that this mortgage was transferred and accepted as payment of these debts. Now, that is a question of fact. If I owed you, Mr. Foreman, a note, and gave you a note which I had upon somebody else, and gave it to you as payment of my note, I must have given it as payment; you must have accepted it as payment to operate as an extinguishment of the debt. In other words, it is a matter of contract, and like all other matters of contract, the two contracting minds must meet and concur— the one to give and transfer this other paper as payment, and the party accepting it must accept it as payment of the debt, in order to operate in law as an extinguishment, a payment of the debt. It is not necessary for me to go any further upon that matter. That’s the law. You apply the facts. You have heard the testimony. It is for you to say < if this mortgage was taken by these parties who are charged as being endorsers on these notes, whether they turned it over to Mr. Evans as representative of the phosphate company, and if so, when they turned it over to him (if they did turn it over to him), did they intend at the time, and did he accept the mortgage at the time, both concurring in the agreement, that it was to be received by him, and accepted as payment of these notes; or was it accepted and received by him as a collateral, merely to secure the payment of the debt. Now, if it was accepted as payment— the defendant alleges payment, it is an affirmative defense— in order to avail themselves of that defense they must satisfy you by the preponderance of the evidence that that mortgage was so turned over by the parties, the mortgagees, with that intent, and so accepted by Mr. Evans as the representative of the plaintiff with like intent as payment of that debt. If it was so accepted as full payment of these notes, then there is nothing due upon them. Now, whether plaintiff has established that as a question of fact by the preponderance of the evidence — which the plaintiff must do in order for that plea to avail — that’s a matter entirely for you. If, upon the other hand, you conclude that the mortgage was not accepted as payment of the debt, but as collateral, then what obligation devolved upon plaintiff company? If Mr. Evans represented it, then, as far as his authority to accept as collateral payment was concerned, it was simply to take and act in good faith, and use ordinary prudence and discretion in collecting whatever was turned over to him and applying it to the assets, if that was the agreement, no more and no less. So much for that.</p> <p>I have been requested to charge you, under sec. 2462 of the General Statutes, that there should have been an advertiseinent of this property, and as there was no advertisement of the property by the plaintiff to sell it, that that as a matter of law released, as I understand, the plaintiffs from their legal liability upon these notes. Counsel (interrupting the Court): You mean defendants. The Court: I mean defendants — released the defendants from their liability upon these notes. I charge you this, according to my view of the law, and I hope I shall make myself plain to you. By way of illustration: if, Mr. Foreman, you were to give me a chattel mortgage, or a mortgage upon personal property, movable property, stock of goods, or horse, or anything like that, whenever that debt fell due, secured by that mortgage, the title in law vested in me, I could, without breach of the peace, go and take possession of it, and draw to the legal title the possession of the personal property, the law having invested me with title, I having procured possession without violating the law or disturbing the peace — -the law says under the statute, it being a pledge for a debt, I in good faith must not appropriate your property; that wont do— that is giving too much power to the mortgagee; I must show my good faith by advertising that property, so as to bring about competition in bidding, that your property may sell for something like its value — advertise in three places or advertise in a newspaper, for the purpose of giving the public notice that there will be a sale of this property, and that your property may bring something like its value, in order that you may get the benefit of the value of the property by way of application to my debt. But in all the cases cited by counsel, which I have not been able to look into, that rule applies where the mortgagee goes and takes possession and converts the property to his own use. Now I am asked to apply that principle to this case. Well, now, I cannot do that, from my view of the law; and why not? In the first place, there is no such plea set up here in the answer. They do not plead that by virtue of violating.the statute regulating such matters that they are released from their debt — they did not put the plaintiff on notice that they were relying upon that to discharge their debt. But outside of that it is in evidence that the Farmers’ Alliance Store made a deed of assignment, for whom? For the benefit of its creditors. Well, now, when they made that deed of assignment, if these parties who are endorsers upon these notes were interested in that store as directors or otherwise, and they, the Farmers’ Alliance Store, selected Pierce as their assignee — if these parties were directors at that time— they selected Pierce as their representative, as their assignee, for what? To wind up the affairs of the concern of the Alliance Store and pay the debts; therefore, I cannot charge you that there has been such appropriation. In order for this principle of law to apply, as I understand it, it must be where a mortgagee goes and takes possession under his mortgage — takes it out of the possession of the mortgagor, takes exclusive control and possession of it, and intending to dispose of it — he must advertise it, and comply with this statute.</p> <p>It is also set up in this answer that these defendants are released on account of plaintiff, the Phosphate Company, taking part, going into the meeting of the creditors, called under that deed of assignment. I cannot charge you that; and why not? Because there is not a word, as I understand it, or a provision under that deed of assignment that excludes any one from any participation in that — it could not do that; but it simply provides, as it should have done, for the settlement of the Alliance Store, the effects and assets, for the benefit of its general creditors, according to their legal priorities. In other words, any judgments, any mortgages, or any liens existing on the stock of goods at the time the deed of assignment was made, subject to those legal rights. It does not say that these parties who come in and accept must give a release and thereby discharge. I do not so understand it; therefore, I cannot charge jmu to that effect.</p> <p>As to the application of the payments. Now, if you believe, from the evidence, that any money has been collected by the plaintiff, the Phosphate Company, other than the $523.54; if you believe that $250 was collected outside of this $523.54, by the Phosphate Company, applicable to the debt of the Farmers’ Alliance Store, then I charge you this as a matter of law: If you hold a note against me and also an account, and I pay you $100 or $200 upon it, just pay you generally, and do not at the time of the payment direct what application should be made of that money I am paying you, it is your privilege, if you exercise it at the time of the payment, to apply it to either. I have the right to say where it shall be applied, and if I, at the time of making the payment, instruct you to put it upon the note, and you put it on the account, because the account may not be as well secured, then you violate the law, because I instructed you to put it at a certain place. That’s my province and privilege, and your duty is to put it where I instruct you. But in the absence of any instruction you have the right to put it upon either one of the debts you have against me. There is no question about that principle of law. If there has been $250 or any other sum collected by the Phosphate Company, the plaintiff, what application did they make of it, and what application should they have made of it? They should have paid it upon the existing debt against the parties here to this action, if it was paid out of the assets of the store. Now, whether they have done so or not, is a question of fact for you. If they paid it upon an existing debt other than these two notes- — ■ any other notes existing against the company — and it was the company’s assets out of which they realized the money, and there was no direction at the time of payment as to how the payment should be applied, they had the right to appfy it to that note, and not to the notes in suit; if there was direction, they should have followed the direction in making the application of payment.</p> <p>' I do not propose to detain you any further. As I have already stated to you, be guided by the law I have given you, which can be corrected if I am in error, you being the sole judges of the facts of the case. If the plaintiff has established its right to recover judgment against the Farmers’ Alliance Store and these several parties, as endorsers of these two notes, except Walton — if the plaintiff has established that legal right by the preponderance of the evidence, then what is your duty? You have no discretion; if that’s your fair, impartial judgment upon the testimony, then your duty under the law to the plaintiff will be to write a verdict for the plaintiff. In that event your verdict should be: We find for the plaintiff the sum of so many dollars and cents, being the aggregate amount due on these two notes, with interest after the maturitj’’ of the notes, after allowing a credit of $523.54 as of date 11th May, 1895. Now, upon the other hand, if the plaintiff has failed to satisfy jmu by thé preponderance of the evidence that it is entitled to judgment according to law, you being the sole judges of the testimony, or if the defendants have shown payment by the preponderance of the evidence, the greater weight of the evidence, by the transfer of that mortgage, then your verdict should be: We find for the defendants. So take the record and find your verdict.</p> <p>Mr. Croft: There are three points I desire to call your Honor’s attention to. First, as to the application of payments. Your Honor has said something with reference to this other note. I beg you to call special attention of the jury to this view of the case — the note signed by Steadman and Riley; it is in evidence $250 was applied to that. Now, I respectfully ask you to charge the jury, that if the jurj*find that the $250 paid came from this mortgaged property, that in that event it must go to the benefit of the persons who assigned that mortgage, and not to the Steadman and Riley note. The Court: Yes, if that be the fact, I so charge you. Mr. Croft: Another view is this: that, as a matter of evidence, if the jury find from any testimony — I refer particularly to Pierce — that, although Pierce may have been the assignee, if he did go ahead and sell those goods by direction of Evans, as representing the assignees of that mortgage, that that would defeat the mortgage debt. The Court: I have charged you to this effect: that in order for this to apply to defeat the rights of the plaintiff here, the defendants must show you that Pierce represented Evans alone, and not as assignee, in this matter, that he represented Evans alone, independently, and renounced his assigneeship as far as his action is concerned; in other words, he must be the representative of Evans alone. I so charge you.</p> <p>The jury retired and brought in a verdict as follows: uWe find for the plaintiff the sum of $fi767,36.'n</p> <p>From this judgment the defendants appeal on the following exceptions:</p> <p>I. Because his Honor, the Circuit Judge, erred in overruling the defendants’ objection and allowing the plaintiffs to introduce the certificate of the Secretary of State as the charter of the defendants’ company.</p> <p>II. Because the Circuit Judge erred in not setting aside the verdict of the jury and granting a new trial, for it appears from the imcontradicted evidence that the defendant, W. T. Walton, did not endorse the note sued upon, and he should have been excluded b)- name in the finding of the jury.</p> <p>III. Because the presiding Judge, in his charge, instructed the jury as follows: “Now it appears here, and it is admitted, that since the commencement of this action, the plaintiff has received the sum of $523.54, for which amount the defendants are entitled to a credit on said note as of date 11th of May, 1895.” Such instruction was calculated to confuse and mislead the jury, and in addition thereto was a charge upon the facts of the case, for the defendants contended that a larger amount had been paid upon the note, and the precise issue was what amount had been paid’on the notes, and that question should have been left to the jury to determine for themselves, without instruction as to the amount of such credit, and the presiding Judge erred in not so doing.</p> <p>IV. Because his Honor, the Circuit Judge, in charging the jury upon the assignment of the mortgage mentioned in the answer, instructed them, “under the pleadings, one of the questions of fact to be submitted to you is: did these endorsers of these notes take a mortgage from the Farmers’ Alliance Store? If you conclude they did, then did they assign and transfer that mortgage to the plaintiffs? Well, in order to show that, you must be satisfied that they assigned it and transferred it to the agent or attorney of the Farmers’ (Columbia) Phosphate Company, that in transacting this business, accepting it, he was acting within the scope of his agency as attorney representing the plaintiff.” It is respectfully submitted that such charge was calculated to confuse and mislead the jury, and that it did mislead the jury, for the proof shows that the mortgage was transferred directly to the plaintiffs, and it was error in the Circuit Judge to instruct the jury that, in order to find such transfer, they must be satisfied that the mortgage was transferred to the agent.</p> <p>V. Because his Honor, the Circuit Judge, in charging the duty of the plaintiffs in collecting the mortgage which had been assigned to them, instructed them: “If Mr. Evans represented it” (the plaintiffs), “then, as far as his authority to accept as collateral payment was concerned, it was simply to take and act in good faith, and use ordinary prudence and discretion in collecting whatever was turned over to him, and applying it to the assets, if that was the agreement, no more and no less; so much for that.” It is respectfully submitted that his Honor erred in such charge, for the duty of a mortgagee or the assignee of a mortgage in collecting the same is not measured by what the jury may consider 'prudent; but in collecting the mortgage he is bound to follow the method directed by the statute, under the penalty of satisfying the mortgage if he proceeds otherwise.</p> <p>VI. Because the Circuit Judge erred in refusing to charge the defendants’ request: “If the jury believe from the evidence that the defendant endorsers turned over to the plaintiffs the mortgage to them from the defendant corporation covering its stock of goods, and the plaintiffs afterward authorized the mortgaged goods to be sold otherwise than the law directs or provided for in the mortgage, and that the mortgage did not authorize such sale in writing, then'the plaintiffs have by such sale defeated the rights to collect the balance that may be due on said mortgage. After the amount received from the sale of the goods, and if the jury so find, then the plaintiffs have damaged the defendant endorsers to the amount due for such deficiency on the mortgage, and they.would not under such circumstances be entitled to recover of the defendant endorsers.”</p> <p>VII. Because, whether or not the defendants had pleaded, they were released by the plaintiffs’ illegal acts in foreclosing the chattel mortgage — the evidence showing that the plaintiffs had proceeded to foreclose the same, contrary to the method prescribed in the statute, had been admitted without objection, and such being the case, it was the duty of the Court to instruct the jury to find their verdict according to the facts proven.</p> <p>VIII. Because his .Honor, the Circuit Judge, erred in charging the jury, that if the defendants were directors of the Farmers’ Alliance Store at the time Pierce was selected as assignee, they selected Pierce as their representative, and for that reason, the principle of law which discharges a mortgage debt if the mortgagee disposed of the mortgaged property otherwise than directed by the statute, did not apply; for, it is submitted, whether or not the defendants were directors of the defendant company, makes no difference. In neither case would Pierce be their representative, but he was the representative of the corporation, and not of its individual members.</p> <p>IX. Because the Circuit Judge erred in charging the jury that the principle of law which discharges a chattel mortgage debt, does not apply except when the mortgagee takes exclusive control and possession of the chattels; for it is submitted that if the plaintiff directed Pierce, the assignee, how to dispose of the mortgaged property, and he followed such instructions, and did as the plaintiff directed, they are liable for whatever forfeiture might arise from Pierce’s illegal method of dealing with the mortgaged property.</p> <p>X. Because the Circuit Judge erred in charging the jury that in order for the principle of law to apply, which would defeat the plaintiffs’ right to recover on the notes, the defendants must show that Pierce renounced his assigneeship, and represented Mr. Evans (plaintiffs’ attorney) alone; for it is respectfully submitted, if Pierce disposed of the goods as Mr. Evans directed, the plaintiffs are subject to the forfeiture for the failure of Pierce to observe the law, in disposing of the goods, whether or not he had renounced his assigneeship.</p> <p>XI. Because the Circuit Judge erred in striking the juror Watkins from the panel, there being no legal objection to his competency to serve as a juror in the case.</p> <p>cite: Setting Aside Verdict: Proffate on Jury Trials, secs. 472, 474; IN S. C., 14. Charge: Con., sec. 26, art. 4; 16 S. C., 155, 591; Sale Under Mortgage: Rev. Stat., 2462; Jones on Chattel Mortgages, sec. 711; 1 Strob. Eq., 334; 15 R. I., 226, 231; 31 S. C., 168. Pleading: Code, secs. 190,191; 19 S. C., 334.</p> <p>cite: Charter: Rev. Stat., chap. 49, art. 1, secs. 2352, 1519; 20 S. C., 156. Setting Aside Verdict: 46 S. C. Exmsing Juror: 43 S. C., 91.</p>

<p>Action by Hester Strother, as administratrix of Robert Strother, against the South Carolina and Georgia Railroad Company, for damages for the cjeath of her intestate, caused by the negligence of the defendant. Judgment for plaintiff. Defendant appeals.</p> <p>cite: Contributed: Rev. Stat., 1692; 3 Rapalje & Mack Digest Railway Daw, 287. Proximate Cause: 15 S. C., 452; 19 S. C., 28; 30 S. C., 163; Sherman & Redñeld on Negligence, sec. 9. Caitse of Injury: 29 S. C., 318; Whar. on Neg., sec. 438; 2A.&E. Ency., 651; 34 S. C., 444; .52 Tex., 28; 3 Rapalje & Mack Dig. Ry. Law, 498; 82 N. Y., 424; 2 A. & E. R. Cases, 251. Failure to Give Signals: 28 S. W. R. (Mo.), 74. Damages: 5 A. & E. Ency., 45; 18 Q. B., 83 (83 Eng. Com. Daw Rep., 98); 83 Eng. Com. Law Rep., 104; 93 Ind., 523; 57 Pa. St. R., 335.</p> <p>cites: Traveled. Place: Rev. Stat., 1685; 34 S. C., 292, 444; 33 S. C., 136; 41 S. C., 1; 1 Bail., 56; Id., 341; Dudley, 92; Cheves, 1. Roads: 6 Rich., 396; 2 Strob., 60; 5 Strob., 267; 5 Tant., 156; 11 S. C., 360; 7 Rich., 390; 11 Rich., 253; 1 McM., 44; 3 Brev., 86; 1 Speer, 17.</p> <p>cites: Traveled Place: 34 S. C., 299, 450; 11 S. C., 361; 41 S. C., 20; Elliott on Roads and Streets, 600; Roref on R. R., 531. Failure to Give Signals: 29 S. C., 318; Beach on Con. Neg. (2d ed.), sec. 186; 34 S. C., 451. Negligence: 46 S. C., 203; 20 S. C., 222; 27 S. C., 271; 25 S. C., 30, 31; 29 S. C., 322; 41 S. C., 19. Measure of Damages: Rev. Stat., 2316; 29 S. C., 322. Charge: 24 S. C., 503; 36 S. C., 216; 11 A. & E. Ency., 266; 39 S. C , 69. Adverse User: 19 A. & E. Ency., 11; 5 Id., 404; 22 Wend. (N. Y.), 425; Angelí on Highways, 159. Prescription: 1 Bail., 56; Id., 341; Dudley, 92; Cheves, 4; 3 Rich., 85.</p>

Action by Laura C. Tobin against the Chester and Lenoir Narrow Gauge Railroad Company, for damages to a cow in transportation. Action was brought in Barnwell County, where the defendant had no office or roadbed. The Circuit Judge ordered the case transferred to Chester County. Plaintiff appeals. cite: Code, 146; 2 Rich., 512; 1 Strob., 72; Morawitz Priv. Cor. (2d ed.), 917; 24 U. S. Stat, 552; Murfree For. Cor., sec. 309; Darty Fed. Proc.

Action by J. J. Davis against the Florida Central and Peninsular Railroad Company, for damages for killing two m tiles. Judgment for plaintiff. Defendant appeals. cite: 31 S. C., 152; 20 S. C., 258; 26 Id., 49; 20 Id., 249; 29 Id., 159; Rev. Stat, 1288; 31 S. C., 519. cites: 31 S. C., 152; 29 S. C., 160.

<p>Motion by Benton W. Jones, upon petition and affidavit, In re Alma Eumber Company against Hessie A. Beacham and others, asking that he be relieved of the judgment of foreclosure in this case. Motion refused. Petitioner appeals.</p> <p>cites: Code, 195; 22 S. E. R., 738; 8 Rich., 468; McCord’s Ch., 406; 7 S. E. R., 133; 17 S. C., 445; 36 S. C., 578.</p> <p>cite: Code, 195; 8 S. C., 62; 17 S. C., 451; 28 S. C., 606; 3 Wait’s Prac., 403; 14 S. C., 332; 16 S. C., 617; 36 S. C., 582; 17 S. C., 444; 8 Richs¡ Raw, 469; 2 McC. Eq., *409; 12 Ark., 401; 5 Caldwell (Tenn.), 371; 32 S. C., 37; 1 A. & E. Ency., 995; 3 PJdw. Chan., 405; 1 Cow., 709; 5 John. Chan., 551; 21 S. C., 204; 8 S. C., 60; Rev. Stat., 2469; 2 N. & McC., 291; 145 U. S., 368; 21 S. E. R., 277; 22 S. E. R., 738.</p>

Action bj' Wiley H. Turner and Kate M. Grice against the Interstate Building and Roan Association upon the following complaint: I. That the defendant, the Interstate Building and Roan Association, are now, and were at the times hereinafter mentioned, a body politic and corporate, under and by virtue of the laws of the State of Georgia, and carried on the business of loaning money, with its principal business office in the city of Columbus, in said State of Georgia, and that…

*' Action by T. R. Team against M. Baum, trustee of H. F. Boykin, for possession of real estate. The following is the decree of the Circuit Judge: The complaint in this action seeks to recover the possession of a certain tract of land situate in Kershaw County.

Petition for injunction addressed to this Court in its original jurisdiction by George McWhirter, praying that the town council of the town of Newberry be enjoined from ordering an election on the question of issuing bonds for erection of water works and electric light plant.

Action by M. C. Milwee against David W. Jay, in his own right, and as surviving partner of the late firm of Bradley & Jay, and John B. Bradley, R. B. Bradley, W. T. Bradley,' S. B. Bradley, Thomas P. Thomson, and George C. Bradley, as executors of the last will and testament of William K. Bradley, deceased, upon sealed note.

Action in partition by John C. McClenaghan, Richard H. McClenaghan, and Mary A. McClenaghan against Reah McEachern, H. H. McClenaghan, Charles E. McClenaghan, J. Boyd Brunson, sr., J. Boyd Brunson, jr., and Bessie Brunson and Marie Brunson, the three first defendants and the two last being minors over fourteen years of age. Order of nonsuit was granted upon trial of issue of title by jury.

Action by the Fanners’ Mutual Fire Insurance Association of Florence County against Thomas S. Burch, for his pro rata share of assessment for losses. The following is so much of the policy as is important: “This agreement, this day entered into between Thomas S. Burch, of Florence, S. C. (who is called the insured), and the Farmers’ Mutual Insurance Association of Florence County, whereby it is agreed: “1.

Action in foreclosure by Wm. Phillips against Daniel Anthony, Thomas Spencer, R. D. Odom, Mrs. Rena Odom, C. P. Turner, and J. A. Carroll. The mortgage of defendants, Turner and Carroll, covered other lands than those covered by plaintiff’s mortgage, and they sought to have the other tract sold by same proceeding.

Action by George P. Beitzsey against the Columbia Water Power Company. The following is so much of the complaint as states the first cause of action: 1. That the defendant was, at the times hereinafter mentioned, and now is, a corporation, duly created and organized under and by virtue of the laws of the said State. 2.

Action by Arthur S. Nunnamaker against the Columbia Water Power Company for damages to a tract of land caused by overflow of back water. Defendant demurred. Circuit Court sustained the demurrer. Plaintiff appeals. cite: Randolph on Em. Dom., § 129; Lewis on Em. Dom., § 566, 571; 53 Ga., 178; 43 la., 26; Lewis on Em. Dom., chap. IV. cite: 28 S. C., 388; 34 S. C., 66; Randolph on Em. Dom., § 126, 136; 33 S. C., 181; 2 Wall., 177; Rand, on Em. Dorn., § 129, 254; 39 W. Va., 196.

Action in claim and delivery by B. B. Norris, as executor of J. Estelle Clinkscales, against A. J. and T. R. Clinkscales, jr. Judgment for plaintiff. Defendants appeal. cites: On admission of testimony under sec. 400: Code, sec. 400; 25 S. C., 231, 238; 3 S. C., 423; 9 S. C., 392; 26 S. C., 160; 33 S. C., 255; 9 S. C., 399; 24 S. C., 592. Irregiilarity of verdict: 18 S. C., 381; 19 S. C., 489; 30 S. C., 326, 327, 328. Charge: 7 Bncy., 15.

Two actions, one by Cyrus W. Hunter and the other i>y Osmund W. Buchanan and Henry A. Gaillard against A. Fletcher Ruff, for the possession of two tracts of land. Held: that where a court is without jurisdiction, the judgment is void, and must be so regarded when it comes before another court. See, also, Cooley on Con. Rim., 466-7; State v. New lane, 7 S. C., 245; Miller v. Miller, 1 Bail., 245 — 6.

The facts are fully stated in the following order on Circuit: This was an action of claim and delivery, tried at the October term, 1890, of this Court. The verdict and judgment was in favor of the defendant, for the return of the property in dispute, or for the sum of $1,700, the value thereof, in case a recovery could not be had, and for the costs and disbursements of the action.

The following are the pleadings: The above named plaintiffs, complaining, by way of amended complaint, for themselves and all other creditors of the defendants, D. R. & W. R. Crawford, who will join in and bear their pro rata share of the expense of this suit, allege: 1st.-That, at the time hereinafter mentioned, Edwin Bates, Thomas R. McGahan, and Charles K. Bates were partners in trade, doing business under the style and firm name of Edwin Bates & Company, and that on the…