The Abbeville messenger. (Abbeville, S.C.) 1884-1887, 1885-03-04

~ SsS thoi lSASC ~ Tic pIlln-
tiff-dl Of the cotton having been
ginned and packed in bales, except SO
much thereof as was estimated to be
sufficient to pay certain agricultural
aefN ny Barbt1 4 brennan, the
payment of which was assumed by the
plaintiff. On OF about the 23d Of Feb
ruary, 1883, the said cotton was seized
by the defendant Walker as sheriff I'M
der u warrant Of attachment issued hy
the Defendants. CouSar 4 Son, against
the said Kitchens, and upon repeated
demands made therefor BY the plaintiT
he refused to deliver it up to the plain
till. On the 5th dry Of April. 1883, the
said Sheriff levied upon the cotton un-
der All execution obtained in the case in
which the above mentioned warrant had
been issued. and a bond Of indemnity
having been executed to him hy Cousar
q Son, with the defendant Allen Leard
Ak surety, he sold the same to Cousar &
Son, they being the highest bidders
therefor. Whereupon this action was
brought to recover the value Of the said
cotton.
The defendants in their answer allece
that on the 9th day Of October, 1882, the
said Kitchens was insolvcnt and that
plaintiff had good reason to believe tina,
he was SO, and that the transfer OF prop
erty above mentioned embraced all Of
the personal property Of the said Kitch-
ems subject to execution !; and that on the
same day the said Kitchens conveyed to
the plaintiff NIL his real cstn,c subject to
execution, in consideration that the plain
diff would pay an a~ntcccdent debt due to
the estate Of Robert Patterson by the
said Kitchens, and they therefore claim
that these transactions between the plain
tiff and Kitchens were in violation Of
Section 2,O14 Of the General Statutes
and therefore void. at the trial Defend
ants counsel proposed to ask Kitchens,
while On the stand ~ n witness. the fol-
lowing questions what property did
you own on the 5th day Of October.
1882 ?" which, upon objection being in.
terposed by the counsel for plaintiff "the
presiding Judge stated that he would
have preferred to meet the question on a
demurrer to the answer hut thoyg,It lie
ought 10 meet 1t in the shape he found
1t that he thought the answer if made
out by the testimony was no valid de-
fence to the plaintiffs case, and that he
wQuldEtreat the matter in the same way
he would have done if there had been q
to. the answer, for want Of
tacts sufticienttp prove n defence. The
egoint to which the question was directed.
f4dit was construed in paragraph VII of
the answer. which transactions it was
claimed constituted such an assignment
as was contrary to the provisions of
Chapter LXXl1, Section 2,Ol4. of the
General Statutes Of this State and there.
fore void"
! The Circuit Judge ruled that the
ssid question was incompetent and ir-
Feie1ant under the plcading$, and rcfus-
.adto allow or require the witness to an
Eswer the question. After this ruling the
defendants, of course, offered no further
oestlmony and the plaintiff had n verdict.
Tho sole question, therefore, raised by
this appear is Al to the correctness Of
this ruling.
Treating the question az If it aros.
upon a demurrer to the answer, that be.
ing the way in which it was considered
by tho Circuit Judge, and should be by
W, all OF the material allegations of thu
answer must be taken to he true. 1t i
there alleged that Mt the time of the
transactions between the plaintiff and
Kitchens, the latter was insolvent and
the former had good reason to know that
fact, n made in pursuance of an oriri-
nal design and intent Of the said Adii-
son r. Kitchens, subject to executions
for debt, to John w. Wilks. determined
on them in the beginning, to transfer and
assign all the property Of Addison +.
Kitchens. subject to execution for .lpbt.
~ John w. Wilks. for the benefit of the.
said John W. Wilks, and the estate of
Eobt. Patterson, to the exclusion Of all
the other creditors Of the said Addison
r. Kitchens. Assuming these a~llc-s-
to be true, they mount to an ad-
mission TINT Kitchens and Wilks intend
Cd to effect the precise object which is
declared to be illegal and absolutely
nuli and void by Section GOA Of tn.
General Statutes, which reads Az fol.
Jaws: "Any assignment by an insoly.
ftit debtor Of his or her property. fo,
the the benefit Of his or her creditors. in
which n question Of priority is given
to any creditor Or creditors or the said
debtor by the terms Of the said assign
taent over any other creditor or credi.
tors. other than as debts lue TO the pub
ne. or In which any provision. Or dispo-
"'uon OF the property so assigned is
made or directed, other than that the
zane be distributed among creditors Of
the said insolvent debtors equally. in
proportion to the amoun Of their sever
nj demands. and without preference OF
priority OF any kind whatsoever, save
only a 8 to debts due to the public, and
save only, as TO such creditors as may ac-
rclt the terms Of, such assignment and
execute release OF their claim against
che debtor, and except as hereafter pro.
.idsd, such. assignment shall be abxo.
iuteIy null and void and Of no EFFECT
whatsoever" The manifest object OF
the Act is to prevent III insolvent debtor
from transferring or assigning his proper.