Cheatham v. Morrison

Citations

• 31 S.C. 326
• 9 S.E. 964
• 1889 S.C. LEXIS 35

Syllabus

<p>1. A non-suit is proper where there is an absence of all competent and pertinent testimony to any one or more of the contested issues raised in the case.</p> <p>2. Property seized under an agricultural lien warrant was replevied, the defendants here, as sureties, signing an undertaking for the delivery to plaintiff of the property mentioned in case a delivery should be adjudged and for the payment to plaintiff “of such sum as may in this action for any cause be recovered against the defendant.” No issues were “made up and set down for trial at the next succeeding term” of court under the agricultural lien law, but plaintiff, by ordinary action, recovered judgment against his debtor for this debt, issued execution, and obtained a return of nulla bona. He then brought this action against the sureties to the undertaking. Held, that defendants -were not liable, as their undertaking only related to a recovery under the proceedings which had been commenced by the issue of the warrant. Mr. Justice McGowan, dissenting.</p>