If

dure provides that: "Upon hearing appeal [from magistrate] the appellate court shall give judgment according to the justice of the case, without regard to technical errors and defects which do not affect the merits. In giving judgment, the court may affirm or reverse the judgment of the court below, in whole or in part, and as to any and all parties, and for errors of law or fact. If the appeal is founded on an error in fact in the proceedings not affecting the merits of the action and not within the knowledge of the magistrate, the court may determine the alleged error of fact on affidavit, and may in its discretion inquire into and determine the same upon examination of the witnesses. the defendant failed to appear before the magistrate, and it is shown by the affidavits served by the appellant or otherwise, that manifest injustice has been done, and he satisfactorily excuses his default, the court may in its discretion set aside or suspend judgment, and order a new trial before the same or any magistrate in the same county at such time and place and on such terms as the court may deem proper. Where a new trial shall be ordered before a magistrate, the parties must appear before him according to the order of the court, and the same proceedings must thereupon be had in the action as on the return of a summons personally served." In the case of Green v. Commissioners, 27 S. C. 9, 2 S. E. 618, the question was raised, but not decided, whether a circuit judge could order a new trial in the inferior court except in a case of default, under section 368 above; and in the case of Miller v. Schmidt, 20 S. C. 588, it would seem that the court thought that section 368 applied only to a case of default, but in that case a petition was made in the circuit court without notice for a new trial, and that was quite sufficient to sustain the refusal of the court to grant a new trial. The doubt thus suggested as to the point now made was, however, removed by the case of Du Bose v. Armstrong, 29 S. C. 290, 6 S. E. 934. In that case, which was an action of claim and delivery of personal property, upon a trial of the issues the jury rendered a verdict for plaintiff, by which the jury "found the mule for the plaintiff upon the payment of thirty-five dollars to the defendant." The trial justice, upon motion, struck out of the verdict the words "upon the payment of thirty-five dollars to the defendant" as surplusage, and judgment was entered upon the verdict thus altered. Upon appeal the circuit court ordered a new trial. One of the exceptions taken to the order of the circuit court was that he erred in ordering a new trial. This court affirmed the judgment, saying: "Section 368 of the Code, under which his honor Judge Witherspoon acted, is very broad. It provides that in cases of appeal from trial justices' courts the appellate court, upon hearing the appeal, shall give judgment according to the justice of the case, without regard to technical errors and defects which

do not affect the merits. Whatever may have been the intention of the jury, the verdict is not in accordance with the form specified in the Code in actions of claim and delivery of personal property, nor was it in such form as the court could so correct or amend as to bring it in form. And it appears to us that his honor reached the right conclusion, to wit, that the case should go back for a new trial.” This was an express holding that the circuit court could order a new trial in a magistrate or trial justice court, under section 368, in a case which was not a default case. This, we think, is a correct conclusion. The general appellate jurisdiction, conferred on circuit courts by the constitution and the statute necessarily includes the power to grant a new trial before the magistrate in a proper case. The statute does not undertake to abridge such right in any express terms. On the contrary, the right is recognized expressly. The last sentence of section 368 applies as well to the first part of the section authorizing "judgment according to the justice of the case," as it does to that portion of the section relating to judgments by default. The term "new trial" is not strictly applicable except in cases where issues had been joined; and it would be a remarkable construction to limit the regulations as to new trials to judgments by default, to which the term does not apply in strictness, and exclude such regulations in reference to trial actually had, to which the terms properly apply; and this, too, in the absence of any language clearly expressing such intent. In this case, however, it was not proper to grant a new trial before the magistrate upon the grounds so considered. On examining the case we find that the circuit court failed to consider the exception, which was "that the verdict is contrary to the evidence of the case, proof showing that title to property then, and had always been, vested in the defendant, and that he had not parted with the same for value or otherwise." This exception involved the merits, and ought to have been considered by the circuit court before ordering a new trial. As this court has no jurisdiction to pass upon that question, we deem it proper that the cause be retained in the circuit court for the purpose of considering the same.

The judgment of the circuit court is reversed, and the cause remanded to that court to consider the appeal from the magistrate on said exception.

(64 S. C. 383) WALTERBORO & W. RY. CO. v. HAMPTON & B. R. & LUMBER CO. (Supreme Court of South Carolina. July 5, 1902.)

ACTION ON CONTRACT-NONSUIT-EVIDENCE.

1. Where, in an action on a written contract, a letter and a telegram were introduced tending to show assent by one of the contracting parties to the contract, it was error to

grant a nonsuit on the ground that there was no evidence in writing of such assent.

2. Where the pleadings in an action on a contract do not raise any issue as to the performance of certain conditions in the contract, a aonsult for failure to prove the performance of such condition was erroneous.

Appeal from common pleas circuit court of Colleton county; Watts, Judge.

Action by Walterboro & Western Railway Company against Hampton & Branchville Railroad & Lumber Company. From an order granting nonsuit, plaintiff appeals. Reversed.

Howell & Gruber, for appellant. Jas. W. Moore, for appellee.

GARY, A. J. The appeal herein is from an order of nonsuit granted on the ground that no evidence was introduced of the written assent to the contract on the part of the Green Pond, Walterboro & Branchville Railway Company. The first and second paragraphs of the complaint allege the corporate existence of the plaintiff and defendant; the other allegations of the complaint are as fol-, lows: "(3) That on the 5th day of January, A. D. 1897, the plaintiff and the defendant entered into another contract, whereby the defendant, upon sufficient consideration, contracted and agreed to and with the plaintiff to furnish for shipment over the railroad of the plaintiff during the continuance of such contract not less than 600,000 feet of lumber per month. (4) That said contract went into effect and became operative on the 25th day of March, 1897, and has been in full force and effect ever since that time. (5) That the defendant has failed and neglected to furnish for shipment over the railroad of the plaintiff 600,000 feet of lumber per month for the first three months under said contract, commencing on the 25th day of March, 1897, and ending on the 25th day of June, 1897, the defendant having furnished for shipment over the railroad of the plaintiff during the said period of three months only 1,039,216 feet of lumber. (6) That the plaintiff was to be paid as its proportion of the freight charges for hauling and transporting said lumber the sum of 6075/100 cents per thousand feet; that the plaintiff's costs and expenses to haul and transport the said lumber, which the defendant failed and neglected to ship for the said period of three months, would have been small and inconsiderable, amounting to not more than $50; that by reason of the defendant's failure to furnish for shipment over the railroad of the plaintiff 600,000 feet of lumber per month for each of said three months this plaintiff has been damaged, to its injury $412.17."

The answer of the defendant admitted the allegations contained in the first and second paragraphs of the complaint, but denied each and every other allegation thereof, and set up the following defense: "For a second defense herein denies that defendant has fur

nished for shipment over the railroad of plaintiff during the time mentioned in complaint only the amount of lumber specified in complaint, and alleges that the defendant has furnished for shipment over the said railroad under the said contract 100,000 feet of lumber per month during the time mentioned in complaint."

The defendant's attorney served the following notice: "Please take notice that at the trial of each of the three causes entitled as above the defendant will introduce certified copies or other secondary evidence of the following documents and instruments in writing, in case you fail to produce for evidence the originals thereof: (1) Articles of agreement between the Walterboro and Western Railway Co. and the Hampton and Branchville Railroad and Lumber Co., in regard to shipping wares, merchandise, lumber, and freights, and as to divers other matters, dated January 5, 1897. (2) The memorandum of agreement in writing, which was drawn up previously to the above-mentioned agreement, and which was the basis of the said abovementioned agreement. (3) Letter directed to J. R. Stokes, Esq., president W. & W. Railroad Company, dated at Savannah, Ga., January 30, 1897, and signed 'F. B. Papy, Genl. Freight Agent,' relating to matters connected with the agreement first above named."

The contract was introduced in evidence, and marked "Exhibit A." The ninth clause thereof is as follows: "(9) That this contract, being first assented to in writing by the Green Pond, Walterboro and Branchville Railway Co. and Charleston and Savannah Railway Co., shall go into effect immediately upon the loading of the vessel chartered by Campbell & Shirer to be loaded at Port Royal, and for the loading of which the party of the second part has to furnish about 108,000 feet of lumber, and shall continue in full force and effect, subject to all the stipulations and reservations herein contained, for a period of eighteen months from the date upon which the same goes into effect."

The record contains the following: "Counsel for plaintiff now wishes to introduce in evidence a letter. Counsel for defendant stated that it should first be proved that Mr. Papy has the position he signs there, and had the authority to make this assent. Counsel for plaintiff states that when a party is served with notice to introduce in evidence a certain paper he cannot be required to prove the execution, nor can the party who requires him to produce it object to it. It has been expressly held by our supreme court, and is the law, so far as I know, in every state. They have given us notice to produce these papers, and I offer them in evidence. The court, after hearing argument. stated: 'After hearing those authorities, I am inclined to think Mr. Gruber is right. will allow it, and note an exception. I rule that a paper having been called for and inspected under the authorities, I am Inclined

I

S. C.)

to think Mr. Gruber has the right to produce it without formal proof.' Exhibits B and C introduced in evidence, as follows: 'Plant System, Savannah, Ga., Jany. 30th, 1897. J. R. Stokes, Esq., Prest. W. W. R. R. -Dear Sir: Your superintendent handed me the agreement between the W. & W. R. R. and the H. B. R. R., and stated that they were ready to execute it as soon as Mr. Mauldin was. As I told you personally, there are many matters embraced in the agreement that this system or the C. & S. Ry. should not be a party to. They relate entirely to matters local between yourselves. The C. & S. Ry. is only interested in that agreement so far as it relates to the rates of freight and divisions of the same. I am authorized by my management to say that we approve of the contract so far as it relates to any matter in which the C. & S. Ry. is a party, and that you can file this letter with the contract as a part of the same. After you have executed the contract, please send me a copy. Very truly yours, F. B. Papy, Genl. Freight Agent.' "To J. R. Stokes, Walterboro, S. C. Subject: Referring to my letter handed Mr. Fincken with the P. and B. contract, the C. & S. and G. P., W. & B. Ry. Co. agree to be bound by this contract as per your telegram, which was the object of this letter. F. B. Papy.'

There is testimony to the effect that the plaintiff and the defendant commenced to operate under said contract on the 25th day March, 1897. The following appears in the record: "Plaintiff rests. Gen. Moore, for defendant: At this stage we move for a nonsuit. The plaintiff rests his case on this contract. There is a clause in this contract which provides-it is the ninth clause-that before it shall go into effect it must be first assented to in writing by the Green Pond, Walterboro and Branchville Railway Co. and the Charleston and Savannah Railway Co. That is a provision of the contract. It is the condition precedent, and until that condition precedent is satisfied the contract cannot go into force. The plaintiffs, in proving their contract, are obliged to prove the assent of the Charleston and Savannah Railway Co. and by the Green Pond, Walterboro and Branchville Railroad Co. They have attempted to do that by the evidence they have submitted, and I submit they have not proved the assent in writing which they should have proved. The assent of a corporation can be proved by the duly accredited and authorized agents of the corporation, and it is the business of the party proving the assent to show that they are the duly accredited agents of the corporation by some act showing that the particular individual who claims to have acted in making the contract had the power to make the contract. I submit, further, that the letter of Mr. Papy is dated January 30, '97, and the contract, by Mr. Fincken's testimony, was not signed until the 15th of March following; so that at the 42 S.E.-13

time that assent was made there was no contract in existence. Mr. Gruber argued in opposition to the motion, contending that the assent of the Green Pond, Walterboro and Branchville Co. had been shown, that the existence of the contract was admitted, and the proof showed that the parties had operated under its terms; that the telegram showing such assent was in evidence, but, if not properly proved, then he asked to be allowed to offer such proof. The Court: A motion is made for a nonsuit on the grounds stated by Gen. Moore. I think I will have to grant the nonsuit on this ground: That this contract shows that it must be assented to in writing by the Green Pond, Walterboro and Branchville Railroad Co., and there is nothing to show that they did. There is sufficient testimony to go to the jury, in my opinion, that the Charleston and Savannah Railway Co., by parties properly authorized- There is enough testimony to go to the jury that it has assented; and, if there was any way in the world in which I could let Mr. Gruber prove that telegram, I would let him, but the mere fact that Mr. Stokes got the telegram would not be sufficient. They would have to hunt up the operator to prove it, and I cannot delay the court. So, on the ground solely of there being no proof before me at all that the Green Pond, Walterboro and Branchville Railroad Co. has assented in writing to the contract, I will grant a nonsuit. They rely on a written contract here, and I grant a nonsuit on that ground." Thereupon his honor granted an order of nonsuit on the ground just mentioned.

It will not be necessary to consider the exceptions in detail. It will be observed that the presiding judge did not rule that the letter and telegram were insufficient evidence of assent in writing on the part of the Green Pond, Walterboro & Branchville Railway Company to the terms of the contract. On the contrary, it appears that he would have ruled that they were sufficient, if he had regarded them as properly before the court for consideration. The record discloses the fact that the letter and the telegram were offered in evidence, and, after the ruling of the circuit judge, were introduced in evidence as Exhibits B and C. They were therefore properly before the court for consideration at the time his honor granted the nonsuit; and, as they tended to show compliance by the Green Pond, Walterboro & Branchville Railway Company with the conditions mentioned in the ninth clause of the contract, the order of nonsuit was erroneous.

Furthermore, by reference to the pleadings, it will be seen that they do not raise the is sue as to the performance of said condition by the railroad company mentioned in the ninth clause of the contract; and, as there was testimony tending to prove all the allegations of the complaint put in issue by the answer, the nonsuit was erroneous for this reason likewise.

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

(64 S. C. 430)

BAKER v. IRVINE (two cases).

BAKER et al. v. SAME.

(Supreme Court of South Carolina. Aug. 11, 1902.)

COSTS ON APPEAL.

1. Where, for sake of convenience, three cases were heard together, and the papers were entitled in the names of the parties in each case, the prevailing party may tax appeal costs for case and exceptions and argument in each

case.

Appeal from common pleas circuit court of Greenville county; Gage, Judge.

Actions by J. A. Baker and by W. C. Baker and by J. A. Baker and W. C. Baker against W. H. Irvine. From judgments for plaintiffs, defendant appeals. Affirmed.

Carey & McCullough, Adam C. Welburn, and B. M. Shuman, for appellant. Blythe & Blythe, for respondents.

JONES, J. The defendant in the three above-entitled actions appeals from the taxation of costs as allowed by the circuit court. The clerk of the court had taxed one set of supreme court costs for the three cases, viz. $10 for making and serving a case containing exceptions, and $25 for argument in the supreme court, which action was reversed by the circuit court, Hon. Geo. W. Gage presiding, who held that costs for said items should be taxed in full for plaintiff in each case. Appellant contends that only one set of costs for the three cases should be allowed, inasmuch as only one case containing exceptions was in fact served, and only one argument in fact made in the supreme court; the cases being heard together and the papers entitled as above. These being cases at law, the right of costs must follow the result, and neither the circuit court nor this court is at liberty to do otherwise than enforce the strict legal right of the prevailing party, without regard to any real or supposed hardship. The costs allowed were in conformity with the statute. The circuit court held, as a matter of fact, that the three cases were never consolidated, and in law could not have been consolidated, and that separate judgments were rendered in each case by the magistrate, by the circuit court, and by the supreme court. 62 S. C. 40 S. E. 672. This being so, the fact 293, that, for sake of convenience, the cases were heard together, and the papers were entitled as above, would not constitute the three cases one in fact. Each case being separate and distinct, the "case with exceptions" and the "argument" must be treated as made in each case. Bogan v. Sprott, 87 S. C. 605, 16 S. E. 35.

The judgment of the circuit court is afArmed.

(64 S. C. 434)

EWBANK ▼. EWBANK. (Supreme Court of South Carolina. Aug. 11, 1902.)

LIMITATIONS-PAYMENT-RENEWAL OF DEBT.

1. An equitable mortgage, and the note secured thereby, barred by limitations, are revived, as between the original holders, by a payment on the note.

Appeal from common pleas circuit court of Greenville county; Klugh, Judge.

Action by Amy S. Ewbank against Herbert B. and Arthur L. Ewbank and others, and from circuit decree Arthur L. Ewbank appeals. Modified.

Oscar Hodges and B. A. Morgan, for appellant. Stanyarne Wilson, for respondent.

JONES. J. In this action for partition of real estate, a controversy arose between above-named defendants involving the statute of limitations, interposed by respondent against a claim by appellant to have respondent's interest in the premises applied to a note due by respondent to appellant, and secured by an instrument conceded to be an equitable mortgage of respondent's interest in the premises. The note was for $500, dated February 6, 1880, payable February 6, 1882, credited with $400, May 13, 1892. The master reported that it was admitted by counsel for Herbert B. Ewbank that the note is not barred by the statute, by reason of the payment of $400 on the note, May 13, 1892, and certain admissions or acknowledgments of the debt made by Herbert Ewbank, in letters written by him to Arthur Ewbank in the year 1899; and that it was further admitted that as the testimony showed that Herbert Ewbank was at the time of the last payment a nonresident of this state, and has remained continuously absent therefrom since that time, the statute of limitations was suspended, and that it would not avail him as to the note, under section 121, Code. The contention was that the equitable mortgage given to secure the note was barred. The master reported against this contention in the following language: "The question thus presented is one of some difficulty of determination, on account of the apparent absence of any direct adjudication of the matter by our own courts. In the case of Nichols v. Briggs, reported in 18 S. C. 473, it was held that, although the note be barred by the statute, that the mortgage given to secure it was not barred, and could be enforced within 20 years from the date of its execution. The court in this same case, quoting with approval from 1 Hill, Mortg. 3, used the following language: 'A mortgage being given as a security for a debt, the general rule is that no mere change in the mode or time of payment, nothing short of an actual payment of the debt or an expressed release, will operate as a discharge of the mort

1. See Limitation of Actions, vol. 13, Cent. Dig 630, 648.

gage. The lien lasts as long as the debt.' 'In equity, a mortgage is always regarded merely as a security for the debt. The debt is the principal and the mortgage an incident only.' Section 1207, 2 Jones, Mortg. The same author, in the same section, used the following language: 'So long as the statute does not bar a recovery on the note, it does not bar a foreclosure of the mortgage. If, by nonresidence of the mortgagor, time be deducted from the period of limitation, so that an action on the debt is not barred, neither is an action to foreclose the mortgage barred.' It seems to me that when a note and mortgage is barred, and when a subsequent part payment, promise, or acknowledgment is made, that it renews the mortgage, so far as it affects the mortgagor's interests in the premises. Section 1202, 1 Jones, Mortg." The master was reversed by the circuit court for reasons thus stated: "There is practically but one question raised by the exceptions, and that is whether the instrument of writing given as security to the above note in controversy is barred by the statute of limitations. The master rightly holds that said writing, under the authority of Bryce v. Massey, 35 S. C. 127, 14 S. E. 768, is an equitable mortgage, and that, being without seal, it was barred after six years. Arthur v. Screven, 39 S. C. 77, 17 S. E. 640. The note secured by said instrument matured February 6, 1882. Payments were made on it down to February, 1884, after which no payment was made until May, 1892, a period of more than eight years. It is conceded that both the note and equitable mortgage were barred at the date of the last-mentioned payment, and it is also conceded that said payment removed the bar of the statute as to the note. Park v. Brooks, 38 S. C. 300, 17 S. E. 22. But the position of the defendant H. B. Ewbank, as set forth in his fifth exception, is that 'the payment on the note made May 13, 1892, was a new promise, made for the payment of the debt only, and not a promise to renew a security previously given for the debt.' It seems to me that this position must be sustained. As said by the master, and so far as my researches go, there is an apparent absence of direct adjudication on this point by our court. But the authorities cited by the master go to show that the note and mortgage are regarded as separate and distinct evidences of securities for the debt; so much so that where the note is barred and the mortgage not, as in the case of Nichols v. Briggs, 18 S. C. 473, or where the note is void for alteration and the mortgage is not so affected, as in the case of Plyler v. Elliott, 19 S. C. 257, recovery may still be had on the mortgage, although the right of action on the note is lost. And the doctrine is well settled that where the principal on a note renews it by a payment or a new promise, whether before or after the bar of the statute

has fallen, such renewal does not bind the surety. Walters v. Kraft, 23 S. C. 578, 55 Am. Rep. 44. And it seems that such new promise does not revive the negotiability of a bill or note originally possessing that incident, but only revives the bare contract to pay. 1 Pars. Cont. (6th Ed.) 434. So that whether the mortgage be regarded as an incident of the debt or as a contract for its security or payment it is not revived by a mere revival of the note, but must be revived, if revived at all, by an explicit contract to that effect."

We think the view taken by the master was correct. A mortgage is an incident to the debt it secures. It follows the debt when the debt is assigned, and it is discharged in whole or in part when the debt is paid in whole or in part. It would seem to follow logically that the legal effect of a payment upon a note in renewing or reviving the debt, or preventing the bar of the statute, would also apply to the mortgage as incident thereto, certainly as between the original parties. It is true that in this state a payment which prevents the bar of the statute, and preserves or renews the remedy, is or implies a new promise to pay the balance due upon the old debt, which should be alleged upon as a new cause of action. Fleming v. Fleming, 33 S. C. 505, 12 S. E. 257, 26 Am. St. Rep. 694. This, however, does not separate the mortgage from the debt, which is the same debt in a new form. Such new promise is not substantially different from a renewal or substantial obligation, which would not affect the lien of a mortgage given to secure the original debt. No mere change in form of the debt secured by mortgage will impair the lien of the mortgage. Gibbes v. Railroad Co., 13 S. C. 253; Burton v. Pressly, Cheves, Eq. 1. While we have found no case in this state directly deciding the point in controversy, upon principle we think it must be held, with reference to the statute of limitations and as between the original parties, that the lien of a mortgage exists and is enforceable so long as the debt which it secures exists and is enforceable. The authorities in other jurisdictions sustain this view. Schmucker v. Sibert, 18 Kan. 104, 26 Am. Rep. 765; Bottles v. Miller (Ind. Sup.) 14 N. E 732; Murray v. Emery (Ill.) 58 N. E. 328; Harper v. Edwards (N. C.) 20 S. E. 393; Kenaston v. Lorig, 84 N. W. 323, 81 Minn. 454; Johnson v. Johnson, 81 Mo. 331. See, also, 19 Am. & Eng. Enc. Law (2d Ed.) 289.

The defendant Arthur L. Ewbank is therefore entitled to have the proceeds of the sale of Herbert B. Ewbank's interest in said land, or so much as may be necessary to satisfy his debt, applied to said debt for which judgment was rendered by the circuit court.

The decree of the circuit court is modified in accordance with the views herein an nounced.