Dickinson v. Way

24 S.C. Eq. 412

• Court: Court of Appeals of South Carolina
• Decided: May 15, 1851
• Status: Published

Opinion

Dunkin, Ch.

delivered the opinion of the Court.

The principles involved in this case are precisely the same as those discussed in Bowie vs. Free and Rice,

(a) heard at these sittings. The evidence is still more direct and abundant; and this Court is well satisfied with the conclusions both of law and fact. The only ground of appeal presented by the brief is that considered and disposed of in Bowie vs. Free. But it has been suggested in this Court that the property of the defendant, Way, is more than sufficient to satisfy the complainant and his other judgment creditors, and that the judgment of his' co-defendant, H. B. Rice, should not be absolutely set aside, but that he should have the advantage of it after the other judgments have been satisfied. One of the grounds, on which the judgment of Rice was set aside, was its tendency to prevent the other creditors of Way, by simple contract or otherwise, from pressing their demands to judgment, and so far as creditors are concerned, he cannot be permitted to derive any advantage from his lien, but must stand on the original indebtedness and come in rateably with the other existing creditors of Way. But, as between Way and Rice, the validity of the judgment was not put in issue by the pleadings, nor was any thing intended to be concluded. These remarks are made in .deference to the suggestions of counsel, and to prevent misapprehension; but none of the facts are before us, either as to a supposed surplus, or the existence of any other than judgment creditors.

It is ordered and decreed that the appeal be dismissed.

Johnston, Daiigan and Wardlaw, CC. concurred.

Appeal dismissed.

Ante p. 403.