#### STATE *EX REL.*LOCKWOOD v. ADAMS, CO. TREAS.

Mandamus — Practice.—A petition for mandamus on appeal may be returned to Circuit Court for an issue of fact not passed on there on the first trial.

Before Witherspoon, J., Beaufort, June, 1897.

Sent back for trial of issue of fact.

Petition by W. H. Bockwood for writ of mandamus, compelling H. Q. Adams, county treasurer of Beaufort County, to pay county commissioners’ warrant. Petition refused. Petitioner appeals.'

*Messrs. Elliott &*Elliott, for appellant.

*Mr. Thos.*Talbird, contra.

(No citations by either on point decided.)

June 30, 1898.

The opinion of the Court was delivered by

*486Mr. Justice Pope.

A petition for the writ of mandamus came on to be heard before Judge Witherspoon. The hearing was had upon the petition, the return, traverse of certain allegations of fact in the return, and other papers. An order was passed by Judge Witherspoon, denying the prayer of the petition and dismissing it. From this order an appeal was taken to this Court upon sundry grounds.

After a careful consideration of these grounds of appeal, this Court finds that the Court below failed to pass upon a question of fact that will be necessary before any judgment can be rendered by us. The pertinency of this question, as well as the question itself, will appear from this statement. In the year 1893, the county of Beaufort was visited by a cyclone of unusual fury, whose ill effects were so general, that the General Assembly of the State, at its next session thereafter, passed an act by which the county commissioners of Beaufort were authorized and required to prepare bonds to the amount of $20,000; and after the same were duly issued and authenticated by said board, said bonds were directed to be placed in the hands of the county treasurer of said county, to be sold by him at not less than par, and the proceeds arising from such said sale to be applied by said county treasurer to the ordinary county and school claims for the fiscal year ending November the 1st, 1893. (See 21 Stat. at Barge, 556.) The bonds were duly issued, but up to May, in the year 1894, only $7,300 of the same were sold, and the grand jury for Beaufort County, in May, 1894, recommended, in their report to the Court of General Sessions, that the remaining $12,700 of said bonds should be placed in the hands of some banker to be negotiated. The Court ordered that the said recommendation should be referred to the board of county commissioners. Thereafter, the petitioner was employed by said board to sell said bonds, and agreed that his compensation for such services should be five per cent, on the sales made. Said bonds were sold at par, and the proceeds, $12,700, paid over to the county treasurer, Mr. R. B. Fuller, and the name of W. H. Lock*487wood was entered in his books as the purchaser of said bonds. On the 8th of August, 1894, the county commissioners drew their order on said treasurer in favor of W. H. Lockwood for the sum of $635, for his services in negotiating a sale of said bonds, but said treasurer refused to pay the same, and forty-two days thereafter the said board of county commissioners passed an order cancelling their order to the treasurer to pay the petitioner the $635 or any part thereof. The main ground for this refusal to pay the petitioner arises from the contention that, by the terms of the act of the General Assembly, already cited herein, the bonds were ordered to be sold at par, and if this claim of petitioner were allowed, it would appear that the bonds were actually sold at ninety-five cents on the dollar. All this would be quite true if W. H. Lockwood were the actual purchaser of said bonds. While his name appears on the books of the treasurer as the purchaser, it may be true that such was only an appearance and not a reality,- for he may have negotiated a sale of such bonds with persons residing in New York, or elsewhere, and for convenience to such persons, residing away from Beaufort County, the name of W. H. Lockwood may have been entered by the treasurer on his books as such purchaser, while in fact other persons- may have been the actual purchasers.

Hence this Court has concluded to send down to the Circuit Court this issue for trial, to wit: “Was W. H. Lockwood the actual purchaser of the $12,700 of bonds of Beaufort County, or were said bonds sold to a person or persons other than W. H. Lockwood at the time said bonds were turned over to said Lockwood by R. B. Fuller, as county treasurer, in the year 1894?”

Let said Court certify to this Court the finding upon said issue so ordered by us, and also let this appeal still remain in this Court.