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Continued from first page. cution to show, not only a prima facie case, but beyond a reasonable doubt." This Court affirmed the doctrine. Judge Norton himself, in Slate v. Jackson, 32 S. C., charged the jury in a way we wish he had in Mcintosh case. He said: 44 When the defendant comes to make out his defense of self-defense, it is his duty to prove it by such a preponderance of the testimony as will make you, when you come to pass on the whole case, still have a reasonable doubt as to the defendant's guilt." In State v. Summers, 3G S. C., 479. Judge Norton's charge to the jury was held to he erroneous and to furnish ground for a new trial, because it was "ambiguous, but calculated to impress the jury with the idea that a defendant charged with homicide must make out his plea of self-defense by more than the preponderance of theevidence." There is stronger reason in this case for granting a new trial when Judge Norton instructed that "it was necessary for the defendant to prove his innocence by a preponderance of the testimony." For in the Summers case he had charged, more mildly, lUlin /lafanrlanf mnef rvi-nvA up)f-rlpfpns>p T)V SUCh a DreDOn lllAt Ult UV1VUUUU t AJIUUV j/AVTV v%v?vw. ? ^ M 4 derance of the testimony," <&c. And Mr. Chief Justice Mclver, in &'late v. Bodie, imposes no such rule as did Judge Norton in this case. He says ; "A defendant who sets up a special defense is only required to prove such defense ; but this, of course, is subject to the general rule," as to a reasonable doubt upon the whole case. 33 S. C., 133. Wft think it clear, in the lierht of the doctrines and cases cited, that his Honor the Trial Judge imposed upon the defendant Mcintosh a heavier burden than the law requires when he charged thejury, that, " in order to make out a case of self-defense, it is necessary for the defendant to provejhis innocene^Tby a preponderance of the testimony." On this ground alone we think the defendant is entitled to a new trial. Not "Clear Cut." Our Fifth ground of appeal alleges error in the Circuit Judge, " because, when his Honor was requested to charge the jury, * tnat aitnougn ine law orujuuruy iiraumcs uiiuiui uum ?cn. of a deadly weapon, this is not the case where the State introduces testimony as to the facts and circumstances attending the homicide,' and having said,4 I so charge you,' he qualified it by adding, 4 But you take it in connection with what I said to you in the direct charge,'?without stating or indicating what part of the direct charge was to affect the proposition of law embodied in said request; or in what manner or to what extent it was to be affected*" In support'of this ground of appeal we shall quote the words of Mr. Associate Justice .Pope in nis learneu opinion in ua-iuing the former appeal in this case. "What is the object of a request to charge ? Is it not to obtain an answer from the Judge to the jury ? This Court holds parties to a cause to a just but rigid rule in case they seek to allege failure in a Judge to embody in his charge to the jury some feature of the law bearing upon the decision of the issues involved in the trial, for we will not consider any such complaint unless a request to so charge was made [and refused." The Court might have said "unless a request in writing, and before argument was made and refused," for such is the Rule of Court, and it was in this case complied wittu^-^e resume the quotation). " Then, if that be so, and when tney seek a charge from the Judge, and he fails to indicate to the jury tote opinion, clear cut, upon the proposition of law contained lit the request, are we not bound to enforce that right ? We would nql~for a moment hold, nor do we hold that the Judge is bound ^Hopt the language of the request, or answer in his charge exadtlJJ^Ken the proponent of the charge would prefer; but the Judge most respond to the request by declaring the proposition, if relevant to the issues involved, sound or unsound." vC&j State v. Mcintosh^ 17 8. E. Rep., 450. This is good law. It is right atad reasonable. Judge Norton did not comply with it. Our written request to charge, handed up to his Honor before argument, deserved an unequivocal response. This it did not get. " I so charge you, but."?and then followed a cloudy qualification which was not explained nor defined. Instead of being "clear cut" and such as would "indicate to the jury his opinion," the Judge's response was vague, unsatis factory, inaennne ana uiisiwuuug. BF&*' Another Charge On The Facts. We have already commented on his Honor's charge on the tacts in our third ground of appeal when he said, "then it would be manslaughter." We call attention in our sixth ground of appeal to another charge on the facts. The language we except to is this"It was the business of (he defendant to have notified him (the deceased) to leave, or else he must make out a plea of selfdefense as if he had notified him." Here the Circuit Judge invaded the province of the jury and himself decided a question of fact. Irrespective of the circumstances in which the defendant fnnnri himsplf when he fired the mortal shot, the Judge decided for the jury that "it was the business of the defendant to have . notified the deceased to leave." This was a matter to be decided exclusively by the jury. And they wonld have considered all the circumstances. They would have regarded them, as did Mr. Associate Justice McGowan in State v. Mcintosh , S. E. Rep., 451 ; when he referred to "the circumstances under which Mcintosh seized his gun, which was at hand, and shot the deceased ; Newby's violent conduct at the breakfast table, breaking dishes with a dipper; his threat, when remonstrated with, that he would break up Mcintosh in the same way his following Mcintosh, who had quietly left the room ; his approaching Mcintosh while he had a gun in his hand ; his still advancing after the first and missing shot had been fired." In addition to these details which were testified to at thefirst trial,thejury would have considered also the following which were elicited at the second trial from the testimony of Sheriff Mann, namely, that seeing Newby coming toward him Mclutosh fired one shot into the door-facing to scare him : that he then told Newby to stop and not come any further; that instead of stopping, Newby "sort of ducked his head" and threw his right hand to his right-hand breeches pocket; and "*r-T?1 L ? 1J 4-j-\ olirvrvf Kim An orm +A cimnlv 1UC1IUOBU BHIU 1IC llicaut i\j ouuvv auu uu vu^ nguv uiui iv * disable him, and he fired without taking any aim At all and killed him ; but that he did not mean to kill him. (Case, ' fol. 64.) All these important circumstances were effectually hidden from the sight of the jury by his Honor's charge that "it was the business of the defendant to have notified the deceased to leave." ^ This we submit was serious error. Unjust but Pregnant Suggestions by the Judge. . We do not think our whole duty done in this appeal without inviting the Court's attention to a portion of the charge which betrays the adverse attitude of the Trial Judge toward the accused, and - 1 ? ' * - L i _ 1 _ f XI i. 1 which may enaDie inis toun 10 juuge in me iuue miu nmiiutT, the look aud emphasis of Judge Norton throughout his whole charge, and indeed throughout the entire trial. There is no excepting to looks or gestures, full of meaning though they be and are often intended to be : the knitted brow and the sneering tone may do more to impress the jury than the words from the lips; but they cannot De made a ground of appeal. But we may, we submit, quote the language of the Judge to show this Court how unjustly and gratuitously he tried to carry the jury with him v * 'against the aocus^d. This may explain 10 some extent me uiracuity unuer wniuri the jury laUjred for nineteen hours before agre-j ng to a verdict which is manifestly a compromise verdict, and as manifestly not the awful verdict the Judge expected. We quote folios 77 and 78 of the "Case," where the Judge thus instructed the jury : "You may review all of the evidence; you may go back to the first time we hear of those parties lieing together, to the time that they were at Bordeaux, and to the time that the invitation was extended to go to his house. " Was the invitation genuine f Was it for the purpose of having X 1 : i o niuiutti tJiijuymriit; "Or, was it/or the purpose of getting the deceased to his house, and then slay him there ? "Those are the questions that are to be considered by you; and they might not be worthy of consideration, but I suggest the possibilities which you may consider in reaching your conclusions. * "You may consider, when they were there that night, and the next morning, what was the conduct of the defendant. s 44 Was it collected and scheming for the purpose of inveigling the \ deceased into some trap whereby he would kill him f \ "The law would not tolerate any such thing as that. And then, 1 at the very moment, gentlemen, when the defendant left the table, 1 did he go, as he says he did, for the purpose of avoiding a difficulty? Is that true? "Now, you are to determine what is true, not by the \tfOrds that the witnesses state upon the stand merely; but you are to deter- ; mine what is the truth of the matter not only by the words but by the witnesses themselves, and the opinion you have as to what is the truth in the matter. "Well, if you conclude that it was feigned at the time, and he changed his mind, bona fide, he had a right to do it. If it was not feigned it would not be conclusive, because it does not deprive it of all the elements of self-defense." ?f.1r II/\n/\w3 fn IaaIt e\4- lira TiOirO morlfph VV C 1191V juui nuiiuio iv iv/vn. av iiiu |jiiioou9 nc im*v ** ??? with Italics. Then read all the evidence which was heard by Judge and jury, and ask yourselves the question?What part or piece of the testimony was it which formed the foundation for Judge Norton's bloody theory ? Your Honors will look in vuin for word or suggestion, statement or question, in all the evidence giVen at both trials to justify the astounding theory which possessed the mind of the Trial Judge. Plainly, this was his view of the case:?That Mcintosh, under the guise of a friendly invitation inveigled Newby into his house, for the purpose of taking his life; that his quiet demeanor was part of his diabolical scheme to entrap his confiding victim ; and that thus the base assassin Mcintosh succeeded in murdering the pnsnnrprl hut. tinstmnectinp Newhv. Mcintosh has enemies. Some of his worst enemies testified against him in both trials. But it did not enter into the heart of his bitterest enemy to conceive as a theory of the homicide that Mcintosh could be guilty of a deed so atrocious, so devilish, so base. There can be no doubt that this cruel suggestion, coming from the Bench, had great weight with the jury. In view of this, we trust that our reference to it will dispose this Honorable Court the more readily to undo the work of the court below, and grant the accused a new trial. Respectfully submitted, PARKER & MCGOWAN. BENET & CASON. For Appellant. The Simmons Hardware Company, Plaintiff, Respondent, i < \ against ? -* r ? i rsr J _. _ a a II__a I he Bank or ureenwooa, ueienaant, appenaru. Points and Authorities of M. I*. DoRruhl, Attorney for Defendant. I Statement or Facts Relle<l on by Appellant. This action is on a check drawn in favor of the plaintiff by Jervey & Co. on Bank of Greenwood on January 2,1892, brief folio 9. It was drawn to pay a debt due by Jervey A Co. to plantiff, brief folio 13. The check was presented to defendant Bank on 1 January 9,1892, and protested for want of payment on the ground of "no funds," Brief folios 8 and 9. At the time this check was presented Jervey & Co. owed the Bank over $3,000 on drafts over drawn, folios 23, 32. Jervey & Co. at that time also owed the Bank several thousand dollars on past due notes, making the total indebtedness over $8,000, folio 34. The Bank opened two accounts on their books, one was general account, and was entered "Jervey & Co." and the other "Jervey & Co. C. A." The "C. A." intended for cotton account, folio 37. Jervey & Co., in both accounts, were the same firm, folio 87. The accounts were so kept merely for convenience and not to change the liability of parties at all, folios, 30,31, also 37. Two accounts on Bank's books. On Jervey <fc Co's. book at their office only one, folios 29, 30. All money deposited in the Bank was the money of Jervy & Co., all /ik/w.b-o riwiurn ?'flro thoir nliwlfs. And nil the business done bv V/l IV/V/1\O Vltn TT 11 1T Vi V vkvh ? -- ?? ? w them through that Bank was Jervey <fe Co.'s business, folios 14,15. Plaintiffs testimony showed that when the check was drawn Jervey & Co., had $167.71 to the credit of their account, folio 12. That Jervey & Co. had drawn another check between the drawing of check sent and its presentation for payment, folios 15,16. It was not an overplus check, folios 20, 21. Sparkman could not testify that Jervey & Co. had money enough to their credit to pay check when presented. That he could not say there was $161 in Bank on 8th or 9th January, folio 14. There was $142.71 to the credit of Jervey & Co. on their general account when the check was presented, folio 35. The amount was supposed to be $242.71, the book keeper having made a mistake in the addition, folios 41 and 42. Jervey & I Co. were insolvent and were consulting their attorneys and made an assignment on the 12th January, folios 22, 43. The Bank had been trying to get money from Jervey & Co. to cover their indebtedness but could not, folios, 32, 43. Mr. Greene told Mr. W. C. McGowan there was money enough there to pay the check, but that Jervey & Co. owed the Bank $8,000 and he did not feel fike he ought to pay it, folio 41. This was after check had been protested, 41. Exceptions 1 and 5. These exceptions relate to the refusal of defendant's motion to dismiss the complaint, and motion for a non-suit. The holder of a bank check cannot sue the bank for refusing payment, in the absence of proof it was accepted by the Bank or charged against the drawer. Bank v. Millard, 10 Wallace 152. Bank v. Shuler, 120 U. S. 511. Bank v. Whitman, 94 U. 8. 343-47, Am. and Eng. Enc. of Law, vol. 3 page 22G and note 2. TThwps v. RlankwelL 12 S. E. BeD. 245-6. In Bank v. Millard above cited, at page 15G the Court says? 44 It is conceded that the depositor can bring assumpsit for the " breach of contract to honor his cheeks, and if the holder has a "similar right, then the anomaly is presented of a right of action " upon one promise, for the same thing, existing in two distinct " persons, at the same time. On principle, there can be no foundation for an action on the part of the holder, unless there is a 44 privity of contract between him and the Bank. How can there 44 be such a privity when the Bank owes no duty and is under no 44 obligation to th? holder ? The holder takes the check on the 44 credit of the drawer in the belief that he has funds to meet it, 44 but in no sense can the Bank be said to be connected with the 44 transaction. If it were true that there was a privity of con44 tract between the bankee and the holdee when the check was "nnvpn thu Tinnk would be obliered to Dav the check, although " the drawer, before it was presented, had countermanded it, and " although other checks, drawn after it was issued, but before " payment of it was demanded, had exhausted the funds of the " depositor. * * * If, then, the Bank did not contract 14 with the holdee of the check to pay it at the time it was given, " how can it be said that it owes any duty to the holder until the " check is presented and accepted ?" 1 The right of a depositor is a chose in action, and his check does not transfer the debt, or give a lien upon it to a third person without the assent of the depository. 1 10 Wallace, page 157. 1 An ordinary check drawn on a general deposit account is not ' an asssignment. Morse on Banks, vol. 2 sec. 511 a A check is neither a legal or an equitable assignment as between drawer and payee, nor a sufficient foundation for any action by the holder against the Bank. ( Morse on Banks, vol. 2, sec. 493. Tho mis** r>f Fntmrtios & Stillman vs. The State Bank, 12 Rich. Law 518, holds that the check holder may sue the Bank, but the ( attention of the Court is respectfully called to the dissenting opin- i 'ion, page 531, an presenting the correct view. t I The motion for a non-suit should have been granted? i . Vvi y; ^ 3 1st. Because there was no evidence to show that there was a ac sufficient amount of money to the credit of Jervey & Co. to pay H the check at the time it was presented. Plaintiflfe' proof showed to that when this check was drawn there wa9 in bank $167.71. Brief, ot folio 12. That Jervey & Co. drew another check on this Bank between the date when this check was drawn and the time it was bj CO Exception* 2 and 3. ^1 R. S. Sparkman, plaintiffs' witness, was allowed to testify ac against defendant's objection Jervey & Co. had $167.70 on depos- in it in Bank when the check sued on was drawn, folio 12. He was also allowed to testify to the contents of a letter written by i(j himself to plaintiff, againts defendant's objection, folios 17,18. S< The Bank book furnished to Jervey & Co. by the Bank was the best evidence of the amount of money to their credit. The money ^ deposited was entered by the Bank, and delivered and accepted w by Jervey <fe Co. If this book had been produced it would nave ^ shown that the balance was insufficient to pay this check. Spark- ^ man said he had drawn another check before this one was pre- ^ sented, but could not state the amount, folio 15. The amount as ' shown by Bank's books was $25.00 on January 4th, and another f1 check for $3.75 on January 7th. AH this should, and doubtless . would, have appeared by Jervey & Co's Bank book, if produced. a It is not claimed that the book is conclusive; it may be shown to be incorrect, but unless this is done it is the best evidence. Exceptions 4 and 0. ei - ' ? it-- T"? 11 These exceptions relate to xne ruling ui me rrommg ouu^c as to testimony offered to explain why the transaction of Jervey & ft( Co. with the Bank wereentered on two accounts. R. S. Sparkman, g| plaintiffs witness, testified that it was done as a matter of conve- ^ nience for both parties, and not to change the liability of the par- m ties at all, fols. 30, 31. Mr. Greene, the cashier, testified, that the tj accounts were so kept merely for convenience and he considered it one account, folios 87, 38. All this testimony was ruled out by his Honor the Presiding Judge. See brief, same numbers. These entries of the account of Jervey &;Co. are subject to explanation by oral testimony. An entry in Book given depositor may be explained or contradicted by oral testimony. Branch v. Dawson 36 Minn. 193. Am. and Eng. Enc. Law Vol. 2, pg. 102. It was not unusual for them to draw from one of these accounts 1 for the use of the other, fol. 49. 4 Bank book Is open to explanation by parol. Muse v. Banks Vol. 1. pg. 501. Sec. 290. . The accounts were not entered separately on book of Jervey A Co., fols. 29, 30. ' , Exception 7. The testimony admitted against defendant's objection, and complains of in this exception, was as to matters occurring in Jervey & Co's office, between themselves and their book-keeper, and or which the Bank had no knowledge, folios 52, 53. Exception 9. f This exception is taken to the charge of his Honor the Presld- tl ing Judge, that "the testimony further goes to show that there tl were no drafts drawn on the cotton account to pay amounts ow- a ing on the merchandise account" See brief, fol. 58. The testimony of Mr. Greene, the Cashier, folio 35, and Mr. Davis, the book-keeper, folio 49, shows just the reverse of what his Honor stated. Mr. Greene said Jervey & Co. had drawn from one account to help out the other, that they had drawn from the cotton ? account and put it on the other, and had given checks on the cotton account. Mr. Davis said that this was done to the extent of e $500.00 or $1000.00 at a time, and that it was not an unusual thing. v His Honor should have left this fact to the Jury/ * Exceptions 10, 11, 12, 17, 18, 19 and 20. " The charge ot his Honor found in brief at folios 58, 59 and GO, is made the ground of appeal by the 10th, 11th and 12th excep- * tions, and his refusal to charge defendant's 3rd, 4th and 5th re- a quests to charge, and his comments on the 3rd request, folios 63, P 64 and 65, are the grounds of appeal in the 17,18, 19 and 20 ex- " ceptions. u Whether there were two deposit accounts or one, was a qestion 0 of fact, of intention of the parties, and should have been submit- * ted to the jury. The testimony shows that the division in the * account was only for convenience. Sparkman says It was not * made to change the liabilities of the parties, folios 30, 31. Mr. s Greene said they did not consider the accounts different, folio 35. That it was merely for convenience, and he considered it one ac- l] count, folios 37, 38. Greene and Davis both said that Jervey & Co. *j would draw from one account for use of theother, folios 35 and 49. ^ All money deposited belonged to same parties. ^ The account which his Honor speaks of as the merchandise ac- gl count, was entered simply Jervey & Co., folio 37, and was a general supply account. Even if there were two deposit accounts the j Bank had the right to refuse to pay this check : 1st. Because the ^ amount to the credit of Jervey A Co.'s account was only $145.71 ?less than the amount of the check, and, 2nd. Because Jervey ?fe ^ Co. owed the Bank over $8,000, on pa3t due notes and checks. The Bank is not obliged to make partial payments, if the funds ? of the drawee in its possession are not sufficient to pay check in ^ full. See note partial payment in Am. and Eng. Enc. of Law Vol 3. page 218. " Morse on Banks, Vol 2, Sec. 446 page 733. " The Bank had to hold the balance to the credit of Jervey & Co., 44 and apply it to the debt due by said firm. ft Money deposited as a general deposit belongs to the Bank, and Mi the relation between Bank and customer is that of debtor and b; creditor. Am. and Eng. Enc. of Law, Vol. 2. page 93. Bank has a lien on all moneys, securities, Ac., of a depositor in a] its possession for the account of the general balance. ^ Am. and Eng. Enc. of Law, Vol. 2, page 88. & Morse on Banks. Vol. 1, Sec. 324, page 553. A " Where a depositor keeps several accounts with his Banker, a " as, for example, a general account, a loan account, and a dis- a* " count account, all being in fact kept by him in his own right, q " nothing short of a clear and distinct contract to that effect will " prevent the Bank from fastening its lien upon securities it may a< " obtain for reimbursement of any of these accounts which may P' a be overdrawn." T Morse on Banks, Vol. 1. Sec. 327, page 561. le " If a depositor becomes Bankrupt, his deposit becomes secur- ir " ity for the payment of his debt to the Bank. If the debt be " contingent in character, Ac., Bank may retain possession until " debt is ascertained." * tc Morse on Banks, Vol. 1, Sec. 337, page 509. y< Exceptions 21 and 82. This exception alleges error in his Honor's refusal to charge e^ Defendants'7th request to charge, and in his charge in comment- d< ing on it to the jury, brief folio 65. L If the check is regarded as an assignment of the ftmd, it would in be subject to all equities between Jervey & Co. and the Bank. hi Hawes v. Blackevell, 12 S. E. Rep. 246. Exceptions 13, 14, 15, 16, 23 und 24. fu et These exceptions all relate to the charge of his Honor on the question of Estoppel. See brief, folios 60, 61, 62. tl The statements of Mr. Greene, Cashier, if not within the scope jt of official duty, cannot bind the Bank. to Am. and Eng. Enc. of Law, Vol. 2. page 120. & The check had been presented, and protested before the state- st ments of Mr. Greene were made, his whole connection with the Cj check had ended. What further act remained to be done to com- w plete his duty ? re Cashier should only give information at Bank. pi Morse on Banks, Vol. 1. page 352. pi Merchants' Bank v. Rudolf, 5 Neb. 527. tr The acts of the Cashier to be binding upon the Bank must be tr clone within the ordinary course of his duty. m United States vs. City Bank of Columbus, 21 How. U. S. 3oG. Li Mr. Greene's statement was that while there was money enough I* ;redited to Jervey & Co. to pay this check, they owed the Bank th 58,000, and for that reason check was not paid, folio 41. He never all id m it ted there was money subject to the dratt. He also said the cu heck was not paid lieoause Jervey <& Co. had overdrawn their tn count, besides being indebted 011 past due notep, folia 82. His fl onor charged that by these statements the Bank was estopped s ^ tlonu thnf fhppo wns mnnpv enouch to nav the check. Qf fn '' j| herwise to correct the mistake on the Bank Book. "Mistakes in Bank accounts are not uncommon. They occur ' -A r unauthorized payments . . . omissions, Ac. When dis- i vered, the mistake must be rectified, and an ordinary writing' 1 3 of a bank book, with a return of vouchers or a statement of J counts, precludes no one from ascertaining the truth and claim- flj g its benefit." Bank v. Whitman, M U. 8.348-47. 1 We submit his Honor should have charged defendant's 9th and Ith requests to charge. Referred to in 23rd and 24th exceptions. ? >e brief folios 79,66, 67. H All of the following elements mast be present in order to an . itoppel by conduct: 1. There must be a representation or con- -jJB salment of material facts. 2. The representation must have 2en made with knowledge of the facts. 8. The party to whom was made must have been ignorant of the truth of the matter. 1 It must have been made with the intention that the other 'M arty should act upon it. 5. The other party mast Iiave been ; iduced to act upon it. Biglow on Estopel, 2nd Ed. page 487. See ? ] [so pages 441, 465 ; Note, 467, 476, 485-6, 492, 493. &.??! Exceptions SO, ?0 and 87. J His Honor should have charged that Plaintiff could not recov- 1 rthe $142.71 without proof that offered to accept a partial pay- 1 lent, and should have charged that thertf was no testimony at II tending to show that plaintiff had offered or was willing to Jg ccept less than full amount of check. Defendant's 13th -request V nould have been charged. The suit was on the check and Plain- . 9 :ff could not recover the $142.71 on the ground of assignment . nd transfer of title becausejio such cause of action is set forth in a le Complaint/ ?>? f; ; V:/.' rhe State of South Carolina, f COUNTY OF ABBEVILLE. N THE SUPREME COURT -EIGHTH CIRCUIT. |>| November Ter?, 1893. -'if I . ' * " : - ; ' . . . ' mnie Law Earley and Others* Plaintiffs, Respondents. ' ^ ; against '> Charles C. Law and Others, Defendants, Appellants. Y;-^C , ;.?rv Statement of Facts. His Honor in his decree from folio 52 to 60 inclusive of the trief gives a statement of the facts, excepts that he fails to note /*hat Mrs. Law sold a tract of thirteen acres more or less off from fie Stony Point place in addition to the Caldwell- tract of 77 , ores. * Pelnta by L. W. Perrin la Behalf of . Law. 1 His Honor erred in holding that $1875.00 of the funds re eived from the Trust estate) or Mrs. uesaa i^aw were iuvidku m . s tony Point. He says (folio 63) That $1,200 of the Trust Estate, -< ntered into the purchase. That C. C. Law claims to have adanced $8,500 which leaves $300 of the $5,000 unaccounted for, nd says further that as he (Mr. Law) had in his hands at the / time money belonging to the Trust estate; the presumption is conclusive that that sum was paid out of the Trust estate." Which is a mere inference ftom an inference. There is no teuimony showing that Mr. Law had any trust ftinds In his hands t the time the $300 was paid. The only evidence of $300 being . ' aid at one time was on 29th January, 1872 (fol. 60)?and the trust A nnd8, (or such as are called trust funds) were not received by him ntil 4th April, 1873?and subsequent to 4th, 1878?three payments i nly were made on the plantation, $1200 on 7 April, '78 (fbl 89). 375.00 on 15 May, '73 and $75 on 25 June, 1874. Thus rendering t improbable that $1875.00 could have been paid out of the trust. Jot over $1575, as it is no where suggested that the $75 paid was i part of trust estate. We can account for the $300 * from the testimony. It is stated I ? the complaint (fol 6) that the original Stony Point place con- jj lined 270 acres, that 77 acres were conveyed to Mrs. Caldwell 4 hat another tract was sold off by Mrs. Law, leaving In present i ract 180,more or less. This would leave 13 acres, more or less, in the < econd tract sold by Mrs Law. Mr. Law in his testimony (fol 80) that ?fhA MXrhpp (fol 50} receipt was a part of the pur- 4 iifMv ? */ ?? N # a hase." This most probably referred to the 18 acre transaction. The / ] ind is admitted to have been 3oId, and it is most probable that j he proceeds were paid on the Stony Point place. The statement wuld then stand, as we maintain it should, as follows; $1200 of < ~ rust funds invested, $2500 advanced by Mr. Law and $300 reeived from the property sold to M. E. Mjtfors, making the $5000 , ' i. rice of Stony Point. ? Again, his Honor states (fol 63) 11 the $875 paid I to Joel Smith was certainly money belonging to the trust J estate. He (Mr. Law) attempts, it is true, to show how this . ' money became-his money, the explanation is unsatisfactory." fr. Law (in folios 36, 41,42,) accounts what became of all the money 'hich came into his hauds, and his explanations were confirmed ' y the Trustee and passed by the Court. By an examination of the settlement by Mr. Law (folios 34, 35 ' & nd 86) which was introduced by Plaintiff (fol. 22) it will be seen mt Mr. Law, as administrator of the estate of Mr. Gibson, reJived from the sale of two lots and the Phillips note $2500, and iat he Daid $84 more than he received. These two lots Were ? - :.:i part of Mrs. Gibson's estate, and were paid for by Mr, Law, her iministrator, with funds of the estate (fol. 40) and were subae* uently sold by him to General Evans from which sale and a ;ttlement of the Phillips note he received $2500, for which he ^counts in folios 34, 35 and 36, showing that $2057.44 only were aid to the Trustee of Mrs. Law's estate, as is shown also by the rustee's receipt (fol. 41) and that nothing of the trust funds were ft in his hands and consequently that nothing could have been ivested in the plantation as a part of the trust estate beyond the 1200, admitted to have been so invested. 2 His Honor erred in reducing the claim of Mr. Law from $3500 j , ami 75? The written obligation of Mm. Law, executed nearly fifteen < ears ago, acknowledges the debt to be $3300, and there is no tesmony whatsoever attacking the correctness of this claim, what,*er else may be in doubt suggested in the testimony as to this jbt, and as we have shown above that the Trustee of Mrs. aws Estate receipted for every dollar of trust funds which came ito Mrs. Law's hand, the $375 deducted by his Honor could not ive been trust funds. . ' 3 His Honor erred in not charging its pro rata of the trust -N inds invested in the Stony Point place upon the 77 acres convey* I tn Mrs. Caldwell. * ^1 Tho evidence shows then $1200 of the trust fUndg were a part of J le $5000 paid for the Stony Point place. It was .pot shown that J was applied to the purchase of any part of the jriace. So that fl i the extent of the pro rata of the $1200 invested, the 77 acres 'w >uld have been charged with the payment of the $1200, though I rangers who are bona fide purchasers might be protected, Mrs. * ildwell or her children having received the land itself which as purchased in part with trust funds to be derived from the f maining portion of the land. They have already received a irtof the trust funds in the 77 acres cut off from the Stony Point are. and cannot hold this and demand their entire half of the list finds iuvested in the 77 acre3. But shows account for the ust funds invested in the 77 acres and thus exhonorate the reaining part of the tract for the benefit of the condition of Mrs. iw to that extent. Mrs. Caldwell paid nothing for her land, was a voluntary deed and the inequity of allowing her to throw e burden off of her trnct, and to subject another tract which one is accessible to other creditors, to the payment of the inmbrance, which was partly incurred in the purchase of her act, and in which she has a half interest, is clear, . .