THE

SOUTHEASTERN REPORTER

VOLUME 93

(107 S. C. 440)

WILLIAMS v. ROLLINS et al. (No. 9746.) (Supreme Court of South Carolina. July 7, 1917.)

REPLEVIN

19-VENUE-SUBJECT-MATTER.

In an action of claim and delivery for possession of a horse, where the defendant, who had possession, resided in K. county, it was error to refuse a change of venue to such county, although plaintiff and the other defendant resided in the county where the action was brought, in view of Code Civ. Proc. 1912, § 172, providing that an action for the recovery of personal property restrained must be tried in the county in which the subject of the action, or some part thereof, is situated.

[Ed. Note. For other cases, sce Replevin, Cent. Dig. §§ 118, 119.]

Appeal from Common Pleas Circuit Court of Lee County; I. W. De Vore, Judge. Action by Carolina Williams against R. B. Rollins and another. From an order refusing a change of venue, defendant named appeals. Reversed.

Thos. H. Tatum, of Bishopville, for appellant. McLeod & Dennis and R. W. McLendon, all of Bishopville, for respondent.

Section 172 of Code of Procedure provides that action for the recovery of personal property restrained for any cause must be tried in the county in which the subject of the action or some part thereof is situated. In All v. Williams, 87 S. C. 102, 68 S. E. 1041, Ann. Cas. 1912B, 837, it was decided that:

"The action should have been brought in the county of Bamberg, where the mules, the subject of the action, were at the time of the commencement of the action."

Justice Woods so construed this section in that case. His honor seems to have allowed the case of Jones Bros. v. Strickland et al., 97 S. C. 444, 81 S. E. 792, to control him in Imaking the order. This mistake is natural from the case as reported, but an examination of the record in the case discloses the

fact that there was an action for conversion, and not an action of claim and delivery. Order appealed from reversed.

GARY, C. J., and HYDRICK, FRASER, and GAGE, JJ., concur.

(107 S. C. 332)

GWATHMEY & CO. v. BURGISS. (No. 9702.) (Supreme Court of South Carolina. June 29, 1917.)

GAMING 50(2)-FUTURES INSTRUCTIONS.

WATTS J. This is an appeal from an order of Judge De Vore refusing a motion for change of venue. The action is for claim and delivery for the possession of a bay horse of the alleged value of $150. The ac- In an action to recover the balance due on tion is against R. B. Rollins and J. M. Hea- a transaction relating to futures in cotton, the instruction "whether a contract for the purron, and is brought in Lee county. The plain- chase or sale of cotton for future delivery is tiff and Hearon reside in Lee county. The good or bad depends upon the intention of the defendant Rollins resides in Kershaw county. parties at the time, and if it was their intention The complaint alleges that Rollins is in wrong- to receive or deliver the cotton or to sell their contract to some one else before maturity, then ful possession of the horse, and is withhold- they are bound by such contract, even though ing the possession of the same from the plain- they may have changed their minds after the tiff and that Hearon claimed some title or contract was entered into," was erroneous beinterest to the property by reason of a mort-tention of the parties that the cotton be actually cause under it the jury could substitute the ingage over the same. Rollins, before answer- delivered and accepted, as required by statute to ing, upon proper notice, made a motion for that of allowing the contracts to be sold before a change of venue from Lee county to Ker- maturity. shaw county, where he resides. This motion was supported by affidavits. The undisputed facts show that at the time the action was Appeal from Common Pleas Circuit Court commenced Rollins lived in Kershaw county of Spartanburg County; Thos. S. Sease, Judge. and the property sued for was in Kershaw Action by Gwathmey & Co. against J. F. county. The defendant Rollins, by appeal, Burgiss. Judgment for plaintiff, and defendchallenges the correctness of Judge De Vore's ant appeals. Reversed, and new trial grantorder and seeks reversal.

[Ed. Note.-For other cases, see Gaming, Cent. Dig. § 104.]

ed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ed the disease of pleurisy on account of the In the case just mentioned, however, the injury complained of in the complaint herein facts did not render it necessary for the court was competent and admissible, and admitted such evidence over the objection of the defend- to decide whether the same rule was apant; whereas, his honor should have held and plicable, when it was the intention of the atruled that, under the pleadings herein, the torney to state the facts incorrectly. plaintiff should have been confined to the disease and injuries specified in the complaint, and evidence relative to pleurisy should have been

excluded."

The appellant's attorneys do not contend that they were taken by surprise.

Section 224 of the Code provides that the court may allow an amendment when it does not change substantially the claim or de fense by conforming the pleading or proceeding to the facts proved.

The ruling of his honor the circuit judge was intended to give the plaintiff the benefit of this section; and the appellant had failed to show wherein there was error prejudicial to its rights.

The second and third exceptions are as follows:

"In that his honor held and ruled, over the objection of the defendant, that one of the attorneys for the plaintiff, had the right to state to a witness, that another witness had testified to certain matters and permitted the attorney so to do, when, in fact, the other witness had not so testified, whereas his honor should have held that such a form of examination was inadmissible.

"In that his honor permitted one of the attorneys for the plaintiff to put to a witness questions which assumed that certain matters had been testified to by another witness, when in fact such matters had not been so testified to, whereas his honor should have held that such a form of examination was inadmissible." The record contains the following statement showing the manner in which these questions arose:

"John Love, being duly sworn, says: (Direct examination irrelevant.)

"Mr. Spigner cross-examining, the relevant portions of the testimony being as follows:

"Q. Mr. Boyd testified when anything went wrong Mr. Prince would report it to you, and your business was to look after the rooms and keep them in shape, and keep things out of his way; is that true? A. Yes, sir.

"Mr. Belser: I don't know counsel has any right to tell the witness in this case what Mr. Boyd testified.

"The Court: He has a right to call his attention to what the witness said.

"Mr. Belser: The witness does not know. "The Court: I don't know either.

"Mr. Belser: He has got no right to state what Mr. Boyd said.

"The Court: I think he has the right to tell him what a witness said. Go ahead, Mr. Spig

ner.

"Mr. Spigner: That being the fact, your business was to keep things in shape and make the place reasonably safe for him? A. Yes, sir."

[2, 3] The syllabus in the case of State v. Taylor, 56 S. E. 360 (34 S. E. 939), is as follows: "On cross-examination of a witness, where all have been excluded, it is not error for counsel to give the witness an incorrect statement of what another witness on same side has sworn to, with a view to test the correctness of the memory or honesty of the witness."

In a note to section 780 of 1 Wigmore on Evidence we find the following quotation from Mr. Joseph Chitty, Practice of the Law (2d Ed.) 111, 901, which states the rule correctly:

"It is an established rule as regards crossexamination that a counsel has no right, even in order to detect or catch a witness in a falsity, falsely to assume or pretend that the witness had previously sworn or stated differently to the fact, or that a matter had previously been proved when it had not. Indeed, if such attempts were tolerated, the English bar would soon be debased below the most inferior of society."

It is shown, however, by the following statement in the argument of the appellant's attorneys that there was no intention to misquote Boyd's testimony:

"While, of course, there is no attempt or purpose to charge Mr. Spigner with having intentionally misquoted the testimony, still it must be noted from the standpoint of the defendant the effect was equally disastrous, even though the misquotation was purely unintentional."

It thus clearly appears that there was not an intentional misquotation on the part of the plaintiff's attorney. Furthermore, the statement of Boyd's testimony by Mr. Spigner. was substantially correct.

[4] The next exception is as follows:

"In that his honor held and charged the jury that the defendant, as employer, was bound to provide a reasonably safe place for the plaintiff, as employé, to work in, whereas his honor should have held and charged the jury that the defendant, as employer, was bound only to exercise reasonable care to provide a reasonably safe place for the plaintiff, as employé, to work in."

It is only necessary to cite the following cases to show that this exception cannot be sustained: Branch v. Railway, 35 S. C. 405, 14 S. E. 808; Hicks v. Railway, 63 S. C. 359, 41 S. E. 753; Richey v. Railway, 69 S. C. 387, 48 S. E. 285; Willis v. Manufacturing Co., 72 S. C. 126, 51 S. E. 538; Grainger v. Railway, 101 S. C. 73, 85 S. E. 231. Judgment affirmed.

WATTS, FRASER, and GAGE, JJ., eon

cur.

HYDRICK, J. I concur in the disposition of all the exceptions, except the first, and concur in overruling that on the ground that the testimony objected to was admissible under the allegation of injury in the fourth paragraph and of its consequences in the sixth paragraph of the complaint. Young blood v. Railroad Co., 60 S. C. 9, 38 S. E. 232, 85 Am. St. Rep. 824.

2. EXECUTION 429

EXECUTION AGAINST THE PERSON-PERSONS LIABLE-STATUTE. Where defendant in an action for division of crops disposed of the whole crop pending the action, he was within Code Civ. Proc. 1912, § 230, providing that the defendant may be arrested in an action for property embezzled by a person in a fiduciary capacity.

[Ed. Note.-For other cases, see Execution, Cent. Dig. § 1230.]

Appeal from Common Pleas Circuit Court of Spartanburg County; James E. Peurifoy, Judge.

Action by James Maxwell and another against William A. Horton. From an order granting the plaintiffs leave to issue execution against the person of the judgment debtor after the return of an execution againt his property unsatisfied, defendant appeals. Appeal dismissed.

J. C. Otts, of Spartanburg, for appellant. R. B. Pasley, of Spartanburg, for respondents.

GARY, C. J. This is an appeal from an order granting the plaintiff leave to issue an execution against the person of the judgment debtor, after the return of an execution against his property unsatisfied. On the 20th of April, 1916, the circuit court rendered judgment as follows:

"It appears that James Maxwell entered into a contract with the defendant, whereby he was to work for the defendant for wages until "layby time," and his wife, Elizabeth Maxwell, had a contract to work a hoe crop on defendant's place, whereby she was to receive one-third of the crop, and the defendant two-thirds, Elizabeth Maxwell was to pay for one-third of the guano, and the defendant two-thirds. This action was brought for the division of the hoe crop. I find that one-third of the hoe crop, after deducting one-third of the guano, belonged to Elizabeth Maxwell, and was not subject to her husband's debts, it being her individual earnings. I find that so much of the master's report that finds the amount of cotton made, and the price received therefor amounting to $195.50, is correct and is hereby affirmed. I also find the amount of seed sold and the price received therefor, amounting to $52.85, as found by the master, is correct and is hereby affirmed. The $4 allowed for labor and the 50 cents for flour are proper charges, and I so allow. It is therefore ordered, adjudged, and decreed that the plaintiff Elizabeth Maxwell have judgment against the defendant William A. Horton for $66.25, and the defendant pay

all the cost of this action."

On the 6th of September, 1916, the plaintiff made an affidavit which contains these allegations:

"That while the action between the plaintiff and defendant was pending in the court of common pleas, and before it was terminated, the defendant sold the entire crop made by this deponent, consisting of four bales of cotton and the seed therefrom, and has failed and refused to pay this deponent any portion of the same. "That the defendant has refused to deliver this deponent her part of the crop, or the proceeds therefrom, and fraudulently detains the same for the purpose of defrauding this plaintiff and cheat and deprive the plaintiff Elizabeth Maxwell of her property.

"Wherefore this deponent asks for an order of arrest in this action, and execution against the person of this defendant, as provided in sections 230 and 347 of the Code of Civil Procedure 1912."

A rule was issued against the defendant, requiring him to show cause why the plaintiff should not have leave to issue execution against his person "for fraudulently taking or detaining or disposing of plaintiff's onethird of all crops, raised upon the hoe crop plaintiff worked with defendant during the year 1915." After hearing the defendant's return to the rule, his honor, the circuit judge, made an order commending the sheriff to arrest the defendant Wm. A. Horton, and commit him to the jail of the county until he paid said judgment, or was discharged according to law. The appellant's attorney, in his argument, states that the exceptions raise two questions, the first of which is as follows:

not for the delivery of any specific property, "The judgment being a money judgment and had the court the power to make an order committing defendant to jail?"

Not only does the judgment rendered on the 20th of April, 1916, show upon its face that it was not an ordinary money judgment, but the language used in the order of arrest shows that such is not its proper construc tion. The following appears in said order:

"Whereas judgment was rendered on the 10th day of May, 1916, in the court of common pleas of Spartanburg county, S. C., in an action between James Maxwell, Elizabeth Maxwell and against Wm. A. Horton, defendant, in favor of Elizabeth Maxwell and against the defendant Wm. A. Horton, for one-third of the crop as set forth in the decree of the court as above set forth or mentioned of the date of May 10th, the amount of the judgment as found being sixty-six and 25/100 dollars. (Italics added.)

[1] It will thus be seen that the amount of the judgment represented her proportion of the crop, to wit, one-third thereof. The second question raised by the exceptions is as

follows:

"Did the court err in holding that such attachment issue, when it was manifest from the record that the defendant was not such a person as was enumerated in section 230 of the Code?"

Section 230 of the Code provides that the defendant may be arrested in the following

cases: