SWEET v. GILMORE. (Supreme Court of South Carolina. July 4,

1898.) WITNESS-IMPEACHMENT-APPEAL-NEW TRIAL.

1. An impeaching witness cannot testify on direct examination as to particular acts of immorality between a defendant and his witnesses, to show them unworthy of belief, unless such acts directly show the impeached witnesses to be unworthy of credit.

2. A witness may be discredited by his giving contradictory accounts of a transaction, or by showing his disregard for the obligation of an oath.

3. Immoral connections between a defendant and his witnesses, not directly touching their veracity, unless to the extent of showing their characters to be bad, will not render them unworthy of belief.

4. An equity case will not be remanded for a new trial for the admission of erroneous impeaching evidence. The case will be considered as though such evidence had not been admitted.

Appeal from common pleas circuit court of Darlington county; J. C. Klugh, Judge. Suit by Emiline Sweet against L. H. Gil

"This is an action for the foreclosure of two mortgages given by the defendant, Gilmore, to the plaintiff; the first to secure a bond for $6,000, dated August 19, 1886, and the second to secure a bond for $750, dated February 7, 1888. The two mortgages cover substantially the same property. The causes came on for hearing in this court at the June term, 1897, at Darlington, upon the pleadings and testimony taken by the master. The amount due on the mortgage indebtedness is the only issue involved. The defendant claims, in the first place, that interest has been illegally charged against him, in that ten per cent., with annual rests, has been collected since as well as before the maturity of the respective bonds. It is only necessary to quote the language of the bonds themselves to show that this contention cannot be sustained. The first bond was payable in six installments, and, after fixing the time of the maturity of the several installments, it continues, 'With interest from the 15th day of August, 1886, on the whole amount, at the rate of ten per cent. per annum, payable annually, on the 15th day of December, 1886, and thereafter on each successive 15th day of December until the whole amount (both principal and interest) shall be paid.' The second bond is conditioned for the payment of the full and just sum of $750 on the 1st day of November, 1888, with interest thereon payable annually from the date of this bond, 'until fully paid, at the rate of ten per cent. per annum.' There is no room here for construction. The intention of the parties is clearly expressed. "The second and main point of difference between the parties is as to certain pay

ments which the defendant claims to have made, and which the plaintiff denies,-in some instances as to any payments at all having been made, and in others as to the correctness of the amounts claimed to have been paid. We will examine this latter class first, namely, where the plaintiff admits that payments were made at the times claimed by the defendant, but denies that they were, respectively, as great in amount as he claims. It is necessary to premise that the plaintiff's business with reference to these bonds was managed by Gen. W. E. James, who had married her niece, and with whom she resided. He seems to have negotiated the loans, had the custody of the papers, and received the payments made on them, of which there are a large number undisputed by either party. It was his custom, when a payment was made, to credit it on the bond, and to give the defendant a loose receipt for the same. That he was careful to so enter the payment is shown by the large number of credits indorsed on the bonds. That he failed in at least one instance to credit a payment is frankly admitted by himself, on being confronted with a receipt for $375, in his handwriting, dated December 21, 1895. There are unimportant differences as to the exact dates of several credits, of which I take the dates indorsed on the bonds to be the true dates of payment. It appears that the payment of November 2, 1886, was made with proceeds of sale of a parcel of the mortgaged property. The net proceeds of the sale are shown to be $127, and credit for the same had been duly given. The defendant claims a credit on December 3, 1887, of $425. The bond shows an indorsement on that date of a payment of $225, which is proven to be the proceeds of a parcel of the mortgaged land sold to one Posten. The evidence convinced me that the indorsement on the bond expresses the true amount of the payment. The defendant claims to have paid $401 on December 12, 1895, the receipt for which, as for the $425, is lost. The bond shows a credit on that day of $104. Gen. James testifies that the payment was $105. I take it that the sum credited on the bond is the correct amount of the payment. There are three other payments about which the parties are in hopeless contradiction. The defendant swears that he paid $1,200 on December 1, 1890, $1,500 on March 16, 1891, and $1,200 on October 15, 1892. He testifies that receipts for these payments were given to him by Gen. James, which he entered in a book kept by him, and in which he entered all his receipts as he got them; that he placed these, with some other receipts, in a trunk in his house; that on a night in 1893 his house was broken into, and this trunk stolen; and that he found it next day in a field near by, broken open, and the receipts and the reports torn to pieces, scattered around, and trampled in the mud, whereby

Other witnesses

the receipts were lost. swear that they saw these particular receipts in Gilmore's possession, and one corroborates his account of their destruction. It does not appear that the defendant ever made known the loss of these receipts to the plaintiff or her agent, or that he asked for duplicates in place of those lost. These three large payments were not credited on the bonds, although numerous other payments intervening between them, and subsequent to the last of them, are duly credited. Gen. James denies positively that they were ever made. The defendant testifies that in May, 1893, he made a list in his book of all his receipts. This list is not in evidence, although the witness was allowed to refresh his memory from it; and he called off from it a number of payments, the receipts for which he declared were lost, including all these about whose existence there is any dispute. A list of all the payments is given in the answer, and it appears that the answer is made from the books of Gilmore. This list shows the alleged payment of December, 1890, in its proper chronological place, between the payments of 1889 and those of 1891; the payment of $1,200 in October, 1892, appears (out of its chronological order) after those of November and December of the same year; while that of $1,500, in March, 1891, appears (low down on the list) amongst those of the year 1895. These irregularities attracted my attention after I had reached my conclusion in this case. They tend to raise a question whether this list which Gilmore claims to have made in May, 1893, could have been made earlier than the year 1895, and whether, indeed, it may not have been made even later, when he began to fear that he might need it for the purposes of this defense. The list may not be correctly copied from the book, however, and little or no importance can be attached to the point.

"The sources from which the defendant derived the means to make payment on this debt appear to have been the products of his farm, which the testimony shows were comparatively small; the income from a sawmill, which was not run regularly; and certain money arising from the sale of small portions of the mortgaged property, and from fire insurance policies on certain buildings which were burned. These last-mentioned moneys are duly accounted for, and, for the most part, were applied to the debt. It appears that he was cramped for means to run his farm, and that for years he had to give liens on his crops and mortgage his land to procure the necessary advances for this purpose. He claims to have paid $1,

200 in December, 1890, and $1,500 in March, 1891, making $2,700 in one season, besides other payments not disputed, while in March, 1891, he was compelled to give a crop lien, and a third mortgage of his land for $1,200, in order to procure supplies for that

year.

He continued this arrangement from year to year for three or four years with the same party, falling short of paying out each year. During all that time the defendant was much pressed to meet the accruing interest on Mrs. Sweet's debt, although he claims to have made a payment in that time of $1,200, in October, 1892. When a party seeks to establish by secondary evidence a fact in direct contradiction of the proof offered by the opposite side, he ought to strengthen such evidence by proving every circumstance known to him, and relevant to the transaction. It would have been a very strong supporting circumstance, easily within his power to prove, had Mr. Gilmore shown where, in his apparently embarrassed condition, he got the money to pay in less than two years nearly $4,000 on his indebtedness, in addition to the payments admitted to have been made. Gen. James testifies that early in 1893, at the defendant's request, he produced the bonds, for the purpose of ascertaining whether all the payments had been credited; that together they went over the receipts carefully, comparing them with the credits on the two bonds; that the receipts and credits were found to correspond; that every receipt which Gilmore had was entered on one or the other bond; and that Gilmore was satisfied with the comparison. One receipt could not at first be found indorsed on the bond, and he, supposing it had not been credited, entered it a second time on the bond; but afterwards, finding it already duly credited, he erased the second entry of it. The defendant denies this whole story, but the erasure on the bond corroborates James' statement. This comparison was had before the alleged destruction of the receipts, and sometime after the date of the last of the large payments in question. If Gilmore had the receipts at that time, he could not have failed to notice that they were not credited. In May, 1893, certain insurance money was credited on the debt, and thereupon an expert accountant was employed by the plaintiff to compute the amount still due. These calculations are introduced in evidence to corroborate Gen. James' testimony. He swears that shortly afterwards he told Gilmore of this calculation, and of the result, and that the latter admitted that the balance so found was about what he thought it ought to be. It was in this same month of May, 1893, that Gilmore entered upon his list all the receipts which he had, including the three large ones now in dispute. A careful calculation of the two bonds up to May 3, 1893, allowing all the payments which Gilmore claims to have made and entered on his list, shows that the payment of the insurance money on the last-mentioned date overpaid the entire indebtedness. Adding to this overpayment the subsequent payments which he claims, and it appears that he has paid more than $1,550 in excess of his debt, not including

interest on the overpayments. It is argued, in the face of these facts, that Gilmore could not make the intricate calculation necessary to ascertain the true state of his indebtedness. Be that as it may, he made a list in this very month of May, 1893, of all his payments, and a mere adding up of the figures would have shown that on a debt of $6,750 he had paid nearly $10,000. But the testimony shows that on the last two occasions the amount of the debt was computed for him with more or less exactness. In this same month,-May, 1893,-the witness Reddick went to see Gilmore about buying a part of the mortgaged property. He naturally wanted to know the amount of the incumbrance, and the receipts were shown to him. This must have been done in order to show how much had been paid, and how small the debt then was. It does not appear that they made any actual calculation of the indebtedness; but if they really looked over the receipts for the purpose of ascertaining the amount of the debt, and if these three receipts were there, they must have easily found that practically nothing was due.

"The witness Milling testifies that in 1895 he wanted to buy a part of Gilmore's land, and made a calculation for Gilmore, and proposed to pay him $500 for 100 acres, by which means he could pay the interest on his debt; that he knew the debt was not less than $5,000, which he learned from Gilmore. Gilmore did not mention the lost receipts to him. The witness Posten testifies that Gilmore told him in the spring of 1895 that he was 'busted,' and that the 'boss man' would break him up. Another witness (Burch) testifies that in the winter of 1896-97 Gilmore told him that James was about to close him out, and he wanted to get a loan on 4,000 acres, at $1.50 per acre, to pay Mrs. Sweet. This accords with his stipulations with Moorhead, who held liens on his crops during the years 1891 to 1894, for holding back enough cotton to pay Mrs. Sweet's interest each year. It is hard to believe that Gilmore could have made those very heavy payments, thereby satisfying the mortgages, and still have been so much exercised about this debt. The testimony of two of his witnesses (McCall and. Wilson), going to corroborate Gilmore's own testimony about those payments, is discredited by their immoral connections with him. Objections were made to much of the testimony going to show this connection, but it is competent for the purpose for which it was offered. Reddick's relation of employé does not necessarily discredit his testimony; but it is difficult to conceive that he really inspected all these receipts for the purpose of ascertaining the amount of the mortgage debt, and yet failed to discover that it was practically, if not fully, paid. The other witness, Rose, overreaches himself, not only in his account of what he saw in a casual fif

teen minutes' call at Gilmore's house, but also in his familiarity with, and ability to identify, the handwriting of a man whom he had never seen use a pen. The issue is one of veracity between two men. It presents a question of probability as to which of them is capable of committing the grievous wrong of which one or the other must be guilty. There is nothing in the testimony reflecting on Gen. James' reputation for truth, morality, and business integrity. So far as this record reveals, he is a virtuous citizen, entitled to have his words and actions judged in the light of a virtuous life. On the other hand, his adversary is proven to be a man living apart from his wife, in adultery, and that with a negro woman. Many of his neighbors and acquaintances refuse to believe his solemn oath,-some, because of his loose business habits and character; others, for his immoral practices. If all else in this record were eliminated, and only the naked word of these two men were balanced in the mind of an intelligent juror, the proven vices of the one must inevitably weigh against his credibility. On this issue I have no more capacity for discernment of the truth than an intelligent layman would have, and my decision must be influenced by such forceful considerations as would control his. I have read and considered the testimony with great care, and I have no hesitation in arriving at the conclusion that the alleged payments of $1,200 on December 1, 1890, $1,500 on March 16, 1891, and $1,200 on October 15, 1892, were never in fact made. I find the amount due on the two mortgages of the plaintiff to be the sum of $5,670.99. Calculations to show the amount due on the larger mortgage were submitted by both sides, and also on the smaller one by the plaintiff. They do not agree, and they also differ from the results arrived at by me. I have therefore thought it best to include my calculations in this decree. They are made after the rules well established by the decisions of our court, and are as follows [then follows the stating of the account by the court, with the following result]: Balance due on first mortgage... Balance due on second mortgage.....

$4,456 21 1,214 78 $5,670 99

"The first bond contains a provision for the payment of costs, fees, and expenses of collection or foreclosure, under which the plaintiff claims an attorney's fee of ten per cent. on the amount recovered. The testimony shows that this is the usual rate charged in cases of this nature. The sum of $445 is therefore allowed as a reasonable attorney's fee in this case. This will make the total amount of the mortgage indebtedness the sum of $6,115.99. It is therefore ordered, adjudged, and decreed: That the plaintiff have judgment against the defendant, L. H. Gilmore, for the sum of $6,115.99, the amount due on the said mortgage debts,

and that the mortgaged premises described in the complaint in this action, except those portions which have been released from the lien of the plaintiff's mortgages, or so much thereof as may be necessary to pay the sum due on the plaintiff's said mortgages, be sold at public auction in the county of Darlington, by the master for said county, on sale day in November next, or some convenient sale day thereafter, for one-half cash, and the balance on a credit of twelve months, with interest from the day of sale, secured by the bond of the purchaser and a mortgage of the premises sold,-the purchaser paying for papers; and, in case the terms of the sale are not complied with, a resale may be had, at the risk of the former purchaser, on the same or any succeeding sale day, without further order; and the said master is hereby authorized, if deemed advisable, to have the said lands subdivided, and sold in such small parcels as may, under the advice of the parties interested, seem most beneficial to all concerned. That the said master give due public notice, in accordance with law, of the time and place of such sale, and that upon compliance with the terms of sale he execute to the purchaser or purchasers a deed or deeds of the premises sold. That out of the proceeds of such sale, after deducting the amount of his fees and expenses on such sale, and any lien or liens upon the said premises so sold, at the time of such sale, for taxes or assessments, the said master pay to the plaintiff or her attorneys the sum of $6,115.99, the amount of her mortgage debt, together with legal interest thereon from the date of this decree, or as much thereof as the proceeds of sale of the mortgaged premises will pay. That he take receipts for all payments and expenditures so made by him, and file an account thereof with his report of sale. That he hold the surplus money, if any, arising from said sale, until the further order of this court. That he make a report of said sale, and file the same with the clerk of this court with all convenient speed. That if the proceeds of such sale be insufficient to pay the amount of the mortgage debt of the plaintiff, with the interest and costs as aforesaid, the master specify the amount of the deficiency in his report of sale, and that the plaintiff have leave to issue execution therefor under the judgment herein rendered in her favor. And that the purchaser or purchasers at such sale be let into possession on production of the master's deed, and a certified copy of the order confirming the report of sale. And it is further adjudged that the defendants, and all persons claiming under them or any of them, be forever barred and foreclosed of any right, title, interest, and equity of redemption in the said mortgaged premises so sold, or any part thereof."

Townsend & Floyd, E. Keith Dargan, and J. P. McNeill, for appellant. Boyd & Brown, for respondent.

GARY, A. J. The facts of this case are set forth in the decree of his honor, Judge Klugh. The defendant appealed from said decree upon exceptions which raise practically but two questions, the first of which is whether the circuit judge erred in not sustaining the objection to the testimony as to the immoral connections of the defendant and other witnesses who testified in his be half, which was introduced for the purpose of showing that the defendant and his other witnesses were not worthy of belief. When a witness is examined for the purpose of impeaching the credibility of another witness, the practice prevailing in this state is to ask the impeaching witness, "What is the general character of the witness,-good or bad?” If the witness under examination answers that the character is bad, then he may be asked, "Would you believe him on his oath?” But in general the impeaching witness cannot testify upon his examination in chief to particular facts. This, however, may be done on cross-examination. State v. Merriman, 34 S. C. 38, 12 S. E. 619; State v. Alexander, 2 Mill, Const. 174; Dollard v. Dollard (unreported) 1 Rice, Dig. 294; 29 Am. & Eng. Enc. Law, 797. The exception to the rule is that the witness may testify upon his examination in chief to particular facts, when they are such as directly show that the impeached witness is unworthy of credibility, as in the case of Anon., 1 Hill, 251, in which the court says: "The credit of a witness may be assailed by showing him to be unworthy of credit in a court of justice. This is generally done by proof of bad character. And in proof of this kind the party assailing the witness cannot go into evidence of particular crimes committed by the witness, unless a conviction of felony for the crimen falsi can be produced; and this is what is meant by not being allowed to go into evidence of particular facts to show a want of character. For the witness is not supposed to come prepared to answer for every particular act of his life, but to show, on the whole, that he has supported such a character as entitled him to credit. But a general bad character is not the only mode of discrediting a witness. His examination in court, or contradictory accounts of the same transaction, may authorize a jury to disbelieve him. So, too, the belief of a witness that he was not bound, on oath, to tell the truth, would, if coming from his own lips, render him incompetent to be sworn; or if, after he was sworn and had testified, it was proved by another witness, it would constitute a most satisfactory reason why the jury should disbelieve him. The testimony allowed for the purpose of impeaching the testimony of Nimrod Mitchell was of this character. It was proved that he had said 'that, if he heard any man say he would not swear a lie, he would not believe him, for on some particular occasions he would, for he thought any man would.' * Is

not such testimony better evidence to discredit the witness than even a want of character? * * Such evidence is not establishing bad character from particular facts. It is showing that the witness holds such opinions of the obligations of an oath as to render him unworthy of belief when he has called God to witness the truth of what he asserts." The particular facts as to immoral connections were not such as to take this case out of the general rule. It did not necessarily follow that the defendant and his witnesses were unworthy of belief because of immoral connections which did not directly touch the question of their veracity. If the defendant and his witnesses had indulged in immoral connections to the extent that their characters had become bad, then this fact should have been proved in the manner herein before stated, which would have shown that they were unworthy of belief. This is a case on the equity side of the court, and, while there was error in allowing testimony to be introduced as to particular facts, the case will not be remanded for a new trial, but the other exceptions will be considered as if such testimony had not been admitted.

The second question raised by the exceptions is whether there was error on the part of the circuit judge in his finding of fact as to the amount due under the mortgages. For the reasons stated by the circuit judge, apart from the testimony as to the immoral connections, this court is satisfied that the exceptions raising this question cannot be sustained. It is the judgment of this court that the judgment of the circuit court be affirmed.

HOLTZCLAW et al. v. GASSAWAY. (Supreme Court of South Carolina. July 4, 1898.)

MARRIED WOMAN-RIGHT OF ACTION.

Const. art. 17, § 9, provides that the property of a woman held at the time of her marriage, or thereafter acquired, shall be her separate property, and "she shall have all the rights incident to the same to which an unmarried woman or man is entitled." Held, that an unauthorized levy upon her property to satisfy a debt of her husband, by which she was damaged, constitutes a good cause of action.

Appeal from common pleas circuit court of Greenville county; O. W. Buchanan, Judge.

Action by Amelia A. Holtzclaw and another against Walter L. Gassaway. Plaintiffs appeal from an order sustaining a demurrer to the complaint. Reversed.

Adam C. Welborn, for appellants. L. 0. Patterson, for respondent.

GARY, A. J. The appeal herein is from an order sustaining a demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The following is a copy of the com

plaint: "The plaintiff Amelia A. Holtzclaw complaining of the defendant alleges: (1) That the defendant resides in state and county aforesaid. (2) That at the times hereinafter mentioned the plaintiff Robt. F. G. Holtzclaw was and is now her husband, and is therefore joined with her as one of the plaintiffs in this action. (3) That on or about January 25, 1897, the defendant issued or executed, under his hand and seal, a paper styled a 'Distress Warrant for Rent,' against her husband, a copy of which is hereto attached and made a part of this complaint. (4) That, under and by virtue of said distress warrant, W. D. Whitmire and the defendant came to plaintiff's residence, in Greenville City, in state and county aforesaid, for the purpose of distraining on the goods and chattels of her husband for rent claimed to be due the defendant as agent of Peter Nelson. (5) That some of the furniture in said residence belonged to her at the time, and the defendant, knowing or presuming such to be the case, and in order to have distress made of all her said furniture as well as her husband's, and to put her in so much fear as to deter and prevent her from even claiming said furniture, did willfully, maliciously, and fraudulently, by hints, insinuations, and innuendoes, tell her and make her believe that, if she claimed her said furniture and thereby prevented said distress, her husband would be arrested and imprisoned as a criminal, and she and her children would then be forever disgraced, and a levy was then made on her said furniture under said distress warrant. (6) That, in consequence of said willful, malicious, and fraudulent conduct on the part of the defendant, she was prostrated, threatened with miscarriage or abortion, and confined to her bed until the 19th day of March, 1897, when she gave birth, prematurely, to a child, who immediately died, and she has not yet, and fears she never will, recover from the effects; to her damage five thousand (5,000) dollars. Wherefore the plaintiff Amelia A. Holtzclaw demands judgment against the defendant for the sum of five thousand (5,000) dollars and the costs of this action." The court deems it unnecessary to set out the exhibit attached to the complaint.

It will be seen that, among other allegations, the complaint sets forth that the defendant made a levy upon her personal property under proceedings to collect rent alleged to be due, not by her, but by her husband, by which she was damaged. Section 9, art. 17, of the present constitution, provides that "the real and personal property of a woman held at the time of her marriage, or that which she may thereafter acquire, either by gift, grant, inheritance, devise, or otherwise, shall be her separate property, and she shall have all the rights incident to the same to which an unmarried woman or a man is entitled." The alleged invasion of her rights by the defendant, in levying upon her prop