McClendon v. Wells

Citations

• 20 S.C. 514
• 1883 S.C. LEXIS 148

Syllabus

<p>1. In an action ex contractu on an attachment bond, the Circuit judge erred in charging the jury that if defendant was actuated by malice in obtaining the attachment with a view to injuring this plaintiff, they could give puni-tive damages.</p> <p>2. And he further erred in instructing the jury that the plaintiff could in such action recover damages for a trespass in seizing and selling the property under a chattel mortgage, which defendant had purchased and thereunder seized the property attached at the instant of the dissolution of the attachment — no such cause of action being stated in the complaint.</p> <p>3. Moreover-, being mortgagee after condition broken, defendant committed no trespass in seizing the chattels, and the only remedy of the mortgagor was an action before sale to redeem, or after sale for accounting, and in either case the mortgagor would be required to pay the mortgage debt, and also all other indebtedness to the mortgagee. Reese v. I/yon, ante 17, approved.</p> <p>4. Tender by the mortgagor after condition broken and seizure would not re-vest title in the mortgagor; besides, a tender of the debt, but not of interest and expenses, wa,s insufficient.'</p> <p>-5. The mortgagee had the right, after condition broken, to take peaceable possession of the chattels, wherever found, or, having them then in his possession, to retain them.</p> <p>6. A general denial in a reply does not permit plaintiff to xarove an affirmative defense to the counter-claim. The case being remanded, permission was given to plaintiff by this court to amend his reply.</p> <p>7. Admissions made by the mortgagees, of the amount due on the mortgage, prior to their assignment of it, are admissible in evidence against their assignee.</p>