Appeal from common pleas circuit court of York county; J. C. Klugh, Judge.

Action by D. E. Finley, as receiver, against Walter B. Moore and another. From a judgment for defendant Moore, plaintiff appeals. Affirmed.

W. B. McCaw, for appellant. Witherspoon & Spencer and Thos. F. McDow, for respondents.

JONES, J. Appellant seeks to set aside, as void under the assignment act (section 2147, Rev. St.), a deed by defendant Cartwright to defendant Moore of an undivided half interest in a lot within the corporate limits of Yorkville, on the ground that said deed was executed by an insolvent debtor to his creditor, who had knowledge of the debtor's insolvency, with a view to give an unlawful preference, and within 90 days previous to the making of an assignment for the benefit of creditors. The facts found by the circuit judge are as follows: "The said deed was made under the following circumstances: Just prior to October 5, 1893, the defendants verbally agreed that the land described in the deed and in the complaint should be purchased by them, as tenants in common in equal shares, for the sum of five hundred and seventy-five dollars, but with the understanding between them that the conveyance should be to the defendant A. Y. Cartwright, and held until such a time as a deed might be requested." The purchase money was evidenced by a note for $575, dated October 5, 1893, payable January 1, 1894, by A. Y. Cartwright to Margaret Ann McElwee and Sallie E. Faulkner, the payment of which was guarantied by the defendant W. B. Moore and J. H. Riddle; the latter being informed of the real relation between the defendants touching the purchase, as found by the court. "On the day named the deed was made accordingly, neither the grantors nor the creditors having any knowledge of this agreement. At this time, and up to a period within 90 days of February 1, 1894, both parties honestly supposed that the defendant A. Y. Cartwright was solvent. On the day of the date of the deed sought to be set aside, and after they both had ascertained that the defendant A. Y. Cartwright was insolvent, and after he had informed Moore that he was afraid it would become necessary for him to make an assignment, A. Y. Cartwright made the deed conveying to W. B. Moore a half interest in said land, for no other reason than to carry out his part of the agreement hereinbefore recited. W. B. Moore furnished his one-half of the purchase money, but no money was paid by him until January 20, 1894, on which day himself and Carrie J. Cartwright raised the entire amount, on receipt of which the payees of the note" assigned the same to Carrie J. Cartwright and W. B. Moore. "Subsequently, on the 1st day of February, 1894, A. Y. Cartwright made a general deed of assignment to Thomas F. Mc

Dow. This deed of October 5, 1893, was made between the date of the claim of the oldest creditor and that of the youngest creditor, for whose benefit this action has been brought." Thereupon the circuit judge concluded, as matter of law, that "A. Y. CartWright did not violate any of the rights of his creditors, either under the assignment act or otherwise, but he did what he had a legal right to do, and what in conscience he was bound to do. He was under no obligation to plead the statute of frauds,"—and accordingly he dismissed the complaint. We concur in the findings of fact by the circuit court. It being established as a fact that Cartwright conveyed to Moore pursuant to the parol trust, and for no other reason, it follows that the conveyance was not with a view to give Moore an unlawful preference. Therefore it was not within the prohibition of the assignment act. See the case of Finley v. Cartwright, 33 S. E. 359, which was heard at the same time with this case, and involved the validity of a conveyance by Cartwright to his wife of a half interest in the premises made on the same day the deed in question in this case was executed. In that case it was also ruled that, inasmuch as the alleged deed of assignment was void, a conveyance within 90 days previous to the void assignment was not within the inhibition of the statute regulating assignments. The statute of frauds does not apply in this case. It was not pleaded, and the circuit court correctly held that Cartwright was under no obligation to plead such statute against the establishment of the parol trust. The statute may be waived, and the execution of the deed pursuant to the parol trust was a waiver. Bump, Fraud. Conv. 250. The deed in question is not assailed for fraud at common law, or under the statute of Elizabeth. The attack is solely upon the ground that it is void under the assignment act, and this attack must fail for the reasons stated. The judgment of the circuit court is affirmed.

1. Under Const. 1868, art. 2, § 32, and 1 Rev. St. § 2133, declaring that the yearly products of the homestead shall be subject to attachment, levy, and sale for the payment of obligations contracted in the production of the same, the proceeds derived from the sale of the crop of a decedent are applicable to the payment of obligations contracted in the production of the same in preference to the widow's claim of homestead.

2. Under 1 Rev. St. § 2049, declaring that, if any person shall die after the first day of March in any year, the crop on the lands which were in the occupation of the deceased shall be assets in the executor's or administrator's hands, subject to debts, legacies, and distribution, the taxes and cultivation of such crop being first paid, the proceeds of the crop are assets in the

administrator's hands. though the expenses of the cultivation of such crop have not yet been paid, and are to be applied to the payment of taxes and obligations contracted in the production of the crop, before distribution.

Appeal from common pleas circuit court of Marion county; R. C. Watts, Judge.

Action by E. Lide Berry, administrator, against Mary E. Berry and H. C. Graham. There was a judgment for plaintiff, and defendant Graham appeals. Modified.

Ferd D. Bryant, for appellant. Johnson & Johnson, for respondents.

GARY, A. J. Elihu Berry died intestate on the 4th of October, 1894. In December thereafter the plaintiff was duly appointed the administrator of said estate, and in a short time after entering upon the discharge of his dutles as administrator commenced this action to enjoin creditors from suing upon their claims, and to determine the right of the widow and children of the deceased to homestead, and for partition. The administrator filed his account, by which it appeared that he had received from all sources the sum of $1,357.05. Of this amount $1,194.78 was derived from sales of the crop raised in 1894, and $161.05 from sales of other peronal property. From the proceeds of the sales of said crop he paid $198.97 for expenses in gathering the crop, leaving a net balance of $997.81 from that source. This Amount and the said $161.05 aggregated $1,158:80 From this amount he paid out the following amounts:

The claims presented against the estate and allowed by the master amounted to $1,640.01, among which was the claim of Wheeler Bros. for supplies consumed in making the crop of 1894, amounting to $1,096.98. This claim was assigned to H. C. Graham. The widow claimed a homestead exemption of $500 in the personalty. The right of homestead was not denied, but the appellant contended that it could not be allowed against his claim. He also contended that the administrator had no right to pay out any portion of the proceeds arising from the sale of said crop beyond the necessary expenses of administering the same. The master sustained these propositions, and reported that the net proceeds of the crop should go to said claim after the payment of its pro rata of the general costs and commissions, and that, the widow being entitled to homestead in the $161.05, the administrator had paid out more than was allowed by law. The plaintiff and the defendant Mary Ellen Berry excepted to the said report. The circuit judge decided that the "$161.05 and all the proceeds of the

crop for agricultural supplies, which is the whole except $129.15 and $209.80 for amounts paid out by the administrator as appears by the report, and which the court decides is to be paid out of proceeds of crop, giving Mary Ellen Berry $500 and to H. C. Graham, assignee, $757.03; and the court orders that E. Lide Berry do pay to his said mother, Mary E. Berry, as a homestead, $500, and that he do pay H. C. Graham, assignee, $757.03, the balance of the crop."

H. C. Graham appealed upon exceptions, the first of which is as follows: "It is respectfully submitted that his honor, the circuit judge, erred: First. In deciding and ordering that the administrator shall pay to Mary Ellen Berry, widow of the deceased, $500 as a homestead out of funds in his hands, when it appeared that the entire fund, less $161.05, was the proceeds of the crop of 1894, and the appellant's claim for agricultural supplies for the making of said crop, as found by the master, amounted to more than the reported net proceeds of said crop, and in not deciding that the proceeds of said crop were first applicable to the payment of said claim in preference to the widow's claim for homestead." As hereinbefore stated, the claim of H. C. Graham amounted to $1,096.98, but $129.15 thereof was not for supplies used in making the crop. The portion of the claim for supplies advanced in making the said crop was therefore $967.83. The amount on hand after paying the expenses of said crop, and which arose from the sale thereof, was $997,. 81. It does not seem to be contended that the said $129.15 should be paid in preference to the claim of homestead, but, even if it had been so contended, it would not be allowed. We will therefore consider whether the said $997.81 is first applicable to the claim of homestead or to the account for supplies consumed in making the said crop. Section 32, art. 2, Const. 1868, contains the following: "Provided further, that the yearly products of said homestead shall not be exempt from attachment, levy, or sale for the payment of obligations, contracted in the production of the same. It shall be the duty of the general assembly at their first session to enforce the provisions of this section by suitable legislation." Section 2133, 1 Rev. St., contains the following: "Provided further, the yearly products of said homestead shall be subject to attachment, levy and sale to secure or enforce the payment of obligations contracted for provisions or other necessary articles purchased, or advances in money or merchandise procured to be used or expended in the production of the same, or of other obligations contracted in the production of the same, and of none other." From the foregoing it clearly appears that the proceeds derived from the sale of the crop are first applicable to that portion of the appellant's account for articles advanced in the making of said crop in preference to the claim of homestead.

The second exception is as follows: "Sec

ond. In deciding and ordering that the administrator's account for funeral expenses, attorneys' fees, probate fees, taxes, etc., amounting to $338.95, should be paid out of the proceeds of the said crop in preference to the appellant's claim for agricultural supplies for the making of said crop, and in not deciding that the appellant's claim was to be paid out of the proceeds of said crop in preference to such claims." Section 2049, 1 Rev. St., is as follows: "If any person shall die after the first day of March in any year, the crop on the lands which were in the occupation of the deceased, shall be assets in the executor's or administrator's hands, subject to debts, legacies, and distribution, the taxes and cultivation of such crop being first paid." Under this section the proceeds of the crop are first applicable to the payment of taxes and of obligations contracted in the production of the same, and, in so far as the decree of the presiding judge conflicts with this ruling, it is erroneous.

The third exception is as follows: "Third. In not holding that the proceeds of the crop of 1894 were not assets in the administrator's hands until the expenses of the cultivation of such crop were first paid; and, the appellant's claim being for such expenses, the administrator was not justified in applying any part thereof to any other claim whatsoever." Section 2049 is not susceptible of the construction that the crop was not assets in the administrator's hands until the expenses of the cultivation of such crop were first paid. The intention of the statute was, in the first place, to make the crops therein mentioned assets in the hands of the executor or administrator, and, in the second place, to provide that the said assets should be applied to the judgment of taxes and of obligations contracted in the production of the crops before being distributed under section 2048, 1 Rev. St., or under the provisions of a will when the deceased dies leaving a will. We fail to discover any expression tending to sustain the view for which the appellant contends.

The conclusion of the court in considering the foregoing exceptions renders unnecessary a consideration of the fourth exception. It is the judgment of this court that the judgment of the circuit court be modified in the particulars hereinbefore mentioned.

DE LOACH v. SARRATT et al. (Supreme Court of South Carolina. June 3, 1899.)

Order staying remittitur. For opinion, see 33 S. E. 2.

McIVER, C. J. On hearing read the petition of Elizabeth De Loach, respondent, with a certificate of disinterested counsel, in no manner connected with the cause, that there is merit in the grounds set forth in the peti

tion for a stay of the remittitur and for a rehearing, and the said petition and certificate of counsel unconcerned in the cause being accompanied with the consent in writing of the respondent that the stay of remittitur shall be granted upon condition that the status of the property involved in the case shall not be disturbed until after the final determination of the cases, on motion of W. B. De Loach, Witherspoon & Spencer, and Wm. B. McCaw, attorneys for respondent, it is ordered that the remittitur be stayed, not beyond the third day of the next ensuing term of this court, subject to the order of the court.

(55 S. C. 307)

MCELWEE v. DICKSON et al. (Supreme Court of South Carolina. June 3, 1899.)

COSTS-REPEAL OF STATUTES.

1 Rev. St. § 2547, which was in force at the time of the passage of the act of 1892 hereinafter mentioned, provided for taxation of attorney's costs in favor of the successful litigant. The act of 1892 repealed acts in relation to attorney's costs, except to causes then pending or to existing liquidated contracts. Section 2. Held, that costs are taxable, under the former statute, in an action on a liquidated contract existing at the time of the passage of the latter act.

Appeal from common pleas circuit court of York county; Ernest Gary, Judge.

Action by R. N. McElwee against William Dickson and others. From an order refusing to tax costs, plaintiff appealed. Reversed.

Witherspoon & Spencers, for appellant. Finley & Brice, for respondents.

GARY, A. J. This is an appeal from the following order of his honor, Judge Gary: "This was a motion to review the taxation of costs by the clerk. The contention was over attorney's costs on note and mortgage executed in 1886,-an existing liquidated contract on the 12th day of January, 1893. After hearing argument, I am convinced, and so hold, that under existing laws no attorney's costs, even on existing liquidated contracts on the 12th day of January, 1893, are now allowed by law. The taxation of costs herein by the clerk is sustained."

The appellant's exception is as follows: "Error: Holding that plaintiff's attorneys were not entitled to taxable costs in the ac tion, though based on a liquidated contract existing January 12, 1893."

Section 2547, 1 Rev. St., which was of force until the time hereinafter mentioned, is as follows: "In every civil action, commenced or prosecuted in the courts of record in this state (except cases in chancery), the attorneys of plaintiff or defendant shall be entitled to recover costs and disbursements of the adverse party, as prescribed in this chapter, such costs to be allowed as of course to the attorneys of plaintiff or defendant, • accordingly

as the action may terminate, and to be in.

In 1892 an act was passed the provisions of which are as follows:

"Section 1. That all acts in relation to attorney's costs be, and the same are hereby repealed: provided, that this shall not apply to causes now pending or existing liquidated contracts.

"Sec. 2. That all acts or parts of acts inconsistent with or repugnant to this act are hereby repealed."

The action herein was upon a liquidated contract existing when said act was passed, and therefore was not affected by its provisions.

This case is quite different from that of Addison v. Sujette, 51 S. C. 305, 28 S. E. 948, which came within the provisions of said act. The act of 1892 did not give the right to tax costs, but simply left the law of force as to costs in actions upon liquidated contracts as it existed at the time said act was passed. The repeal of this act, therefore, did not affect the right to costs in actions on liquidated contracts existing when the act of 1892 was passed, as the right to tax costs in such actions was not derived from the act of 1892, but from the provisions of the Revised Statutes hereinbefore mentioned. The act of 1892 had no force or effect whatever upon the right to costs in actions on liquidated contracts existing when said act was passed. If the legislature had desired to take away the right to tax costs in actions on liquidated contracts existing when the act of 1892 was passed, it would have repealed the entire provisions of the Revised Statutes allowing attorney's costs. It is the judgment of this court that the order of the circuit court be reversed.

(55 S. C. 207)

STATE v. HOLLEYMAN et al. SAME v. HOLLEYMAN. (Supreme Court of South Carolina. June 3, 1899.)

CONSTITUTIONAL LAW-INTERSTATE COMMERCE-TRANSPORTATION OF LIQUOR.

1. Defendant purchased whisky in North Carolina, and while transporting it from the place of purchase to his home, after entering South Carolina, was arrested for a violation of the state law, and the whisky seized. The liquor was for his personal use, was being conveyed by him in his buggy, and nothing had been done to break the continuity of the transportation from the place of purchase to his home. Const. U. S. art. 1, § 8, provides that congress shall have power to regulate commerce among the several states, and the "Wilson Act" (26 Stat. 313) provides that all liquors transported into any state, or remaining there for use, consumption, or sale therein, shall on arrival in such state be subject to the laws of such state enacted in the exercise of its police powers. Held, that the whisky had not at the time of its seizure "arrived," within the meaning of the Wilson act, but was in course of transportation, and was not subject to seizure under the state laws.

2. A state law which permits a person to have in his possession liquor purchased for his own use from a dispensary within the state, but attempts to prohibit and make contraband the possession of liquor intended for personal use purchased without the state, is unconstitutional, as an interference with interstate commerce.

Jones, Pope, Townsend, and Klugh, JJ., dissenting.

Appeals from general sessions, circuit court of Chesterfield county; W. C. Benet, Judge. Charles Holleyman and Charles Mixon were convicted of handling and hauling contraband liquors in the nighttime, and appealed Reversed.

For former opinion, see 31 S. E. 362.

W. P. Pollock, for appellants. U. X. Gunter, Asst. Atty. Gen., and J. M. Johnson, for the State.

EUGENE B. GARY, A. J. These two cases arose out of the same transaction and the same state of facts. By consent they were heard together. The indictments were identical, except as to the names of the defendants. They charged that the defendants, "on the eleventh day of December, A. D. 1896, with force and arms, at Chesterfield, in the county and state aforesaid, did unlawfully handle and haul contraband spirituous liquors in the nighttime, against the form of the statute in such case made and provided, and against the peace and dignity of the state."

The following facts, which seem to be undisputed, were developed by the testimony: The defendants live near Lamar, in Darlington county, about 40 miles from Chesterfield C. H. On the 11th of December, 1896, they left their homes in Darlington county, and traveled by private conveyance to Hightower's distillery in North Carolina, where they purchased about 21 gallons of corn whisky, which was put up in kegs and jugs. The jugs and kegs were then placed in the defendants' buggies, and they started back to their homes. After crossing the state line, and when within about two miles of Chesterfield, S. C., during the nighttime, they were arrested by a state constable and his posse, their liquor and teams seized, and they placed in jail. The liquor was purchased for their personal use. Up to the time of their arrest they had done no act even tending to break the continuity of the transportation, and the liquor was seized while in transit. The defendants were convicted, whereupon they appealed upon exceptions which will be set out in the report of the case.

The pivotal point in the case is whether the liquor was contraband when seized as aforesaid. If the liquor, when seized, came within the protection guarantied by the constitution of the United States to interstate commerce, all statutory enactments in South Carolina upon this subject were inoperative. Our first inquiry, therefore, will be whether it came within this protection. This will involve a construction of the constitution of the United States relative to interstate commerce