due under plaintiff's judgment should not be collected and paid to him. Reversed.

The facts sufficiently appear in the opinion. Messrs. Carlisle & Hydrick, Bomar & Simpson and Nicholls & Moore, for ap pellant:

The union of debtor and creditor in the same person pays the debt.

Griffin v. Bonham, 9 Rich. Eq. 78; Sherwood v. Collier, 3 Dev. L. 380, 24 Am. Dec. 264; Black v. White, 13 S. C. 37; Freeman, Judgments, 39.

A man cannot buy and keep alive a debt against himself.

Sherwood v. Collier, supra; 2 Pom. Eq. § 797.

If the debtor Wood was personally discharged and his only liability with reference to this debt was that his homestead was subject to its lien, then the purchase by him of the judgment while holding the land constituted a merger and extinguished the judgment.

See Agnew v. Charlotte, C. & A. R. Co. 24 S. C. 18; Navassa Guano Co. v. Richardson, 26 S. C. 401.

The doctrine of merger is legal-a rule of law. The exception to the rule finds no countenance, except in equity where the intention of the parties will be regarded. But while this is true, equity will never allow such intention to prevail where it would work a fraud or do injury to other parties.

2 Pom. Eq. $ 794.

Mr. J. S. R. Thomson, for respondent:

The Alfred Moore judgment against Wood is not satisfied by its being assigned to Wood, because there was no intention that it should be satisfied, or that the lien should be merged in the title of Wood.

2 Pom. Eq. § 791; 7 Wait, Act. and Def. 324; Edgerton v. Young, 43 Ill. 466; Lyon v. McIlvaine, 24 Iowa, 9; Finch v. Houghton, 19 Wis. 149; Duncan v. Smith, 31 N. J. L. 325; Camp bell v. Carter, 14 Ill. 286; 3 Shars. Lead. Cas. Real Property, 237.

Generally, when the person in whom the two estates, or the estate and a right, become united, intends to keep them separate, no merger will take place.

Richards v. Ayres, 1 Watts & S. 485; Campbell v. Carter, 14 Ill. 287; Jarvis v. Frink, Id. 396; Champney v. Coope, 32 N. Y. 543; Fowler v. Fay, 62 Ill. 375; Smith v. Roberts, 91 N. Y. 470; Bassett v. Mason, 18 Conn. 131; Knowles v. Lawton, 18 Ga. 476; Freeman v. Paul, 3 Me. 260; Polk v. Reynolds, 31 Md. 106; Franklyn v. Hayward, 61 How. Pr. 43; Rawiszer v. Hamil ton, 51 How. Pr. 297; Aiken v. Milwaukee & St. P. R. Co. 37 Wis. 469; Richardson v. Hock

enhull, 85 Ill. 124; Duncan v. Smith, supra; Davis v. Pierce, 10 Minn. 376; Wickersham v. Reeves, 1 Iowa, 413; Mallory v. Hitchcock, 29 Conn. 127; Knowles v. Carpenter, 8 R. I. 548; Woodward v. Davis, 53 Iowa, 694; Rumpp v. Gerkens, 59 Cal. 496; Pike v. Gleason, 60 Iowa, 150; Hospes v. Almstedt, 13 Mo. App. 270; Car pentier v. Brenham, 40 Cal. 235; Pennock v. Eagles, 102 Pa. 290; Besser v. Hawthorn, 3 Or. 129: Wallace v. Blair, 1 Grant, Cas. 75; Andrus v. Vreeland, 29 N. J. Eq. 394.

Where the mortgagee acquires the land mortgaged, or the judgment creditor acquires the land bound by the judgment, and there

| exist junior mortgages or liens, the judgment or mortgage will be saved from merger in order to protect the estate of the purchaser.

Baldwin v. Norton, 2 Conn. 161; Lockwood v. Sturdevant, 6 Conn. 373; Fowler v. Fay, 62 Ill. 375; Bell v. Tenny, 29 Ohio St. 240; Edgerton v. Young, 43 Ill. 464; Tower v. Divine, 37 Mich. 443; Milspaugh v. McBride, 7 Paige, 511; Silliman v. Gammage, 55 Tex. 364; Watson v. Dundee Mortgage & Trust Investment Co. 12 Or. 474.

Where the owner of the land buys in a mortgage to protect his estate, there will be no merger.

Dircks v. Logsdon, 59 Md. 173; De Lisle v. Herbs, 25 Hun, 485; 1 Jones, Mort. § 848; Starr v. Ellis, 6 Johns. Ch. 396; Hunt v. Hunt, 14 Pick. 374, 25 Am. Dec. 407; Dougherty v. Jack, 5 Watts, 456, 30 Am. Dec. 335; Factors & T. Ins. Co. v. Murphy, 111 U. S. 743 (28 L. ed. 534); Carson v. Richardson, 3 McCord, L. 532; Kirkpatrick v. Ford, 2 Speers, L. 112; Bomar v. Mullins, 4 Rich. Eq. 86; Agnew v. Charlotte, C. & A. R. Co. 24 S. C. 23.

It was never a duty of Wood to pay the debts from which he was discharged in bankruptcy. Allen v. Ferguson, 85 U. S. 18 Wall. 4 (21 L. ed. 855); Traer v. Clews, 115 U. S. 540 (29 L. ed. 471).

To prevent merger in a case like this the intention governs, and it is immaterial whether such intention is expressed or is implied.

2 Pom. Eq. § 792; 3 Shars. Lead. Cas. Real Prop. 239, 241; 1 Jones, Mort. § 848.

McGowan, J., delivered the opinion of the

court:

In 1873 one B. T. Wood filed his petition in bankruptcy. At the time there were several judgments against him,-the oldest, that of A. L. Moore, for $1,252, and the next in priority that of the plaintiffs, Fowler, Foster & Co. In these bankruptcy proceedings a certain tract of land was set off to the petitioner, Wood, as his homestead, and was held by him until 1879, when he sold the land to M. F. Smith, and he afterwards sold it to respondent, his wife.

On July 23, 1874, Wood was discharged in bankruptcy; but it seems that both of the judgments above described were founded on causes of action which were in existence before the adoption of the Constitution (1868). and, fearing that the assignment of homestead would not stand as against these judgments, the said Wood, before his discharge, paid to A. L. Moore $125 for his judgment, and took an assignment of it from him in the following words:

Wood the above judgment, without recourse For value received I hereby assign to B. T. on me.

[Signed] A. L. Moore. [Seal.]

In 1886 T. E. Moore, the owner of the judgment of Fowler, Foster & Co., had it renewed by order of court, and on March 19, 1887, the following paper was signed and delivered to Mrs. E. J. Smith:

For value received I hereby assign to Elmira J. Smith the above judgment, without recourse on me. [Signed] B. T. Wood. [Seal.]

In August, 1887, the land was sold by the sheriff under plaintiff's judgment, and was bid off by respondent, Mrs. Smith, for $705. Respondent refused to pay her bid, claiming that her judgment (the A. L. Moore judgment) was still alive, and, as it was the older judgment, was entitled to credit the purchase money thereon.

This proceeding was then begun by rule on the sheriff, and Mrs. Smith was made a party. She was made a party defendant, and the referee, to whom all issues were referred, found that the judgment claimed by respondent had been paid, and that the plaintiffs were entitled to have the purchase money paid in by Mrs. Smith, and applied to their judgment. On exceptions filed, Judge Kershaw overruled this report and dismissed the proceedings.

From this decree the appeal comes to this court upon the following exceptions: "(1) In not holding that the judgment now claimed by defendant, Mrs. Smith, has been paid by lapse of time. (2) In holding that B. T. Wood, under advice, bought the oldest judgment against himself from Dr. A L. Moore, with a view to protect the title to his homestead; and in not holding, if there was any evidence at all tending to show such purpose and such advice, that same was incompetent, and should not have been considered. (3) In holding that plaintiff's judgment never had lien on the land sold by the sheriff, except in subordination to the judgment now claimed by Mrs. Smith, the defendant. (4) In holding that the original judgment debtor, B. T. Wood, had the right to purchase and keep open against himself, to the prejudice of his junior judgment creditors, the Moore judgment, and in holding, further, that such conduct did not injure said junior judgment creditors. (5) In not holding that the moment the money was paid to A. L. Moore for said judgment, and the same was assigned to Wood, it was paid by operation of law, and never afterwards constituted a lien on said land. (6) In not holding that from the time of such so-called assignment in 1874, up to March, 1887, the said judgment was not kept open by Wood, but was intended to be, and was, paid and satisfied, and the pretended assignment of it in 1887 could not revive its lien. (7) In not sustaining the report of the referee, and overruling the defendant's exceptions thereto," etc.

The assignment of the homestead, as against the judgment rendered on debts older than the Constitution of 1868, was absolutely void. Douglass v. Craig, 13 S. C. 371.

ant in execution, and when he pays the money that is the end of the law. The transaction is payment eo instanti, and not merely purchase for future use against himself. The end in view has been accomplished, and the process is functus officio. "The owner of the fee subject to a charge, who is himself the principal and primary debtor. and is liable personally and primarily for the debt secured, cannot pay off the charge, and in any manner, or by any form of transfer, keep it alive. Payment by such a person, and under such circumstances, necessarily amounts to a discharge. The incumbrance cannot be prevented from merging by an assignment taken directly to the owner himself, or to a third person as trustee. This rule applies especially to a mortgagor, who continues to be the primary and principal debtor. The rule also applies to a grantee of the mortgagor, who takes a conveyance of the land subject to the mortgage, and expressly assumes and promises to pay it as a part of the consideration. He is thereby made the principal debtor, and the land is the primary fund for payment. If he pays off the mortgage, it is extinguished." 2 Pom. Eq. Jur. § 797, and authorities.

"The assignment to one of his own debt is an absurdity." Sherwood v. Collier, 3 Dev. L. 380, 24 Am. Dec. 264; Freem. Judgm. 39.

But it is earnestly urged that Wood, at the time he paid for the judgment and took the assignment to himself, was not the primary debtor, and personally liable for the judgment, for the reason that he had been discharged in bankruptcy, and that had relieved him from the legal liability to pay the judgment, and therefore he was not the debtor, but had acquired the right to purchase and hold a judgment against his own property precisely as any stranger might do. We do not so understand the facts of the case. It appears that Moore assigned his judgment to B. T. Wood, the defendant, on July 8, 1874, and that he was not discharged in bankruptcy until July 23, 1874, so that there is no foundation for the view suggested. But, if the facts were as claimed, we could not accept the conclusion insisted on. The land was not administered in bankruptcy, and must have still remained the property of Wood, the debtor. If not, to whom did it belong? Certainly not to the assignee in bankruptcy. Wood paid for a judgment against himself, and, if his discharge in bankruptcy relieved him from the legal liability to pay the judgment of the plaintiff, it was certainly not paid, and, being a debt still, had a lien upon the land. We hardly think it can be said that he had ceased in any sense to be the debtor. Wilson v. Kelly, 16 S. C. 216.

!

The judgment of this court is that the judgment of the Circuit Court be reversed, and the

that the case be remanded to the circuit for such further proceedings as may be deemed necessary to carry into effect the conclusion herein announced. Simpson, Ch. J., and McIver, J., concur.

Samuel ELMER, Piff.,

v.

George R. FESSENDEN.

(......Mass.................)

1. Declarations of workmen to the su

This question was excluded by the court. The plaintiff afterwards asked: "What, if anything, did they say as reason for stopping?" This question the court also excluded. Afterwards the plaintiff introduced as witness Anna M. Brackett, who testified that she was, in June, 1887, an employé of the plaintiff in the manufacture of the whip snaps in Ashfield, and that in the first part of that month she stopped making as many whip-snaps as before because she heard there was poison in the silk.

men.

(November 26, 1889.)

Overruled.

The plaintiff then asked the witness from whom she heard this, and she stated she could not remember.

that it originated from the defendant, except evidence that the defendant had circulated identical statements, and informant the

Franklin County, to recover damage to plaintiff's business by words alleged to have been spoken by defendant which caused plaintiff's employés to quit work.

At the trial, which was before a jury, the| plaintiff introduced evidence tending to show that he was a manufacturer of whip-snaps from silk thread, and that in the month of June, 1887, the defendant, who was a physician in that town, had circulated the report that he had sent some of the silk thread, used in the manufacture, to the state board of health for analysis and received from that board a report that it contained arsenic in sufficient quantities to be dangerous to the employés using it in the way they did.

The witness who testified to these facts had also testified that he was and had been from March, 1887, the agent of the plaintiff who superintended this business, and he was permitted, on the assurance of the plaintiff's counsel, that he expected to prove, later, that certain of the employés, for the loss of whose services damages were specified in the declaration, had stopped work by reason of the statement of the defendant to them, above referred to, relative to the report of the board of health, to testify that these employés stopped work on the 11th day of June, 1887, for some time. The plaintiff then, to prove the reason why they stopped work, asked the witness, "whether they gave any reason for stopping work."

NOTE. Slanderous charge, when actionable.

A general charge of being drunk, in order to be actionable, must be coupled with some business in which drunkenness is a disqualification, or tends to constitute incapacity. Broughton v. McGrew (Ind.) 5 L. R. A. 406, note, and 39 Fed. Rep. 672.

the defendant, further inquired, "What was the report which you heard in June, 1887, which caused you, as you have testified, to make a less number of whip-snaps?"

This question the court excluded.

The plaintiff also asked her: "From whom was the report stated to you to have come, if from anyone?"

This question the court also excluded.

There was evidence tending to show that the question whether there was arsenic in the silk had been a matter of discussion among the employés, and in the community in Ashfield since the preceding February; and that several of the employés had received medical advice that there was arsenic in it, but their work had not fallen off before June, and that in fact there was no arsenic in the silk.

The plaintiff, having duly excepted to the several exclusions of evidence above set forth, and the jury having returned a verdict for the defendant, filed exceptions.

Mr. Henry Winn, for plaintiff:

The plaintiff had a right to call for the declarations of the employés made to his foreman when they left:

Because the case required him to prove the mental feeling of fear in the employés; and declarations are admissible to prove this.

Hadley v. Carter, 8 N. H. 40, 43; Jacobs v. Whitcomb, 10 Cush. 255, 257; Lund v. Tyngs borough, 9 Cush. 36, 41, 43.

Because what they said was part of the rea gesta a main material fact.

Starkie, Ev. p. 89; Monroe v. State, 5 Ga. 85. Declarations may be admissible to show the mental cause for action.

Thorndike v. Boston, 1 Met. 242, 247.
The response might have been, "Fear to

Rex v. Foster, 6 Car. & P. 325; Travelers Ins. Co. v. Mosley, 15 U. S. 8 Wall. 397, 406, 407, 408 (19 L. ed. 437, 440, 441).

The rules applied in ordinary cases of slander, where there is no duty of repetition and the repeater is liable for the repetition while the | originator may not be, seem out of place in this

case.

Derry v. Handley, 16 L. T. N. S. 263; Swift v. Winterbotham, L. R. 8 Q. B. 244, 253.

This testimony, however, as we understand the exceptions, was the only evidence which the plaintiff was able to offer on the question, Who spoke to the workmen? In the absence of direct evidence upon that point, it could not be inferred that the defendant was the person from the mere identity of form, if proved, of the story as told by the defendant and the workmen's belief. That could be explained as probably by supposing the story to have been repeated by a third person. Unless the defendant in person told the workmen the story,

Odgers, Libel and Slander, 1st Am. ed.*313; Ashley v. Harrison, 1 Esp. 48, 50; Tilk v. Parsons, 2 Car. & P. 201.

Defendant is not liable for the repetition of the alleged slander by another person.

Hastings v. Stetson, 126 Mass. 329, 331; Shurtleff v. Parker, 130 Mass. 293, 296.

The law of England as to liability for the repetition of a slander by a person other than the defendant, is the same as our own.

Odgers, Libel and Slander, 1st Am. ed. *314, 315.

Holmes, J., delivered the opinion of the

court:

It was a part of the plaintiff's case that the cause of his workmen's leaving his employment was the defendant's false story. If, as may be assumed, the excluded testimony would have shown that the workmen when they left gave as their reason to the superintendent that the defendant had told them that the board of health reported arsenic in the silk, the evidence was admissible to show that their belief in the presence of poison was their reason in fact. Lund v. Tyngsborough, 9 Cush. 36, 41, 43; Aveson v. Kinnaird, 6 East, 188, 193; Hadley v. Carter, 8 N. H. 40, 43; U. S. v. Penn, 13 Nat. Bankr. Reg. 464, 467.

We cannot follow the ruling at Nisi Prius in Tilk v. Parsons, 2 Car. & P. 201, that the testimony of the persons concerned is the only evidence to prove their motives. We rather agree with Mr. Starkie that such declarations, made with no apparent motive for misstatement, may be better evidence of the maker's state of mind at the time than the subsequent testimony of the same persons. Starkie, Ev.

10th Am. ed. *89.

But, as a rule, such declarations are not evidence of the past facts which they may recite. The cases in which they have been admitted to prove the cause of a wound or injury, when the declarations were made at the time, or immediately after the event, if not exceptions to the general rule, at least mark the limit of admissibility. Com. v. Hackett, 2 Allen, 136, 140; Com. v. Mc Pike, 3 Cush. 184; Travelers Ins. Co. v. Mosley, 75 U. S. 8 Wall. 397 [19 L. ed. 437].

The excluded testimony was not competent to prove that the defendant did tell the workmen the story. As to that it was mere hearsay and was not within the scope of the special

left were both immaterial. It follows that the evidence was properly excluded.

It is argued that the defendant was answerable for the repetition of such a story as this, on the ground that anyone who heard it was morally bound to repeat it to the workmen. The general rule that a man is not liable for a third person's actionable and unauthorized repetition of his slander is settled. Hastings v. Stetson, 126 Mass. 329, 331; Shurtleff v. Parker, 130 Mass. 293, 296.

If the repetition is privileged the question becomes somewhat different. It is true that the fact that the sufferer has no action against one person is not a sufficient reason for giving him one against another. Even if otherwise he is remediless. But the case is withdrawn from the principles applied in many instances, that the law will look no further back than to the wrongdoer who is the proximate cause of the consequence complained of. Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 49, 5 New Eng. Rep. 566.

We need not now decide that when the original slander was uttered under such circumstances that the privileged repetition manifestly was to be expected, the damage caused by the repetition could not be recovered for to the same extent as if the defendant had repeated the slander himself. Compare Derry v. Handley, 16 L. T. N. S 263; Parkins v. Scott, 1 Hurl. & C. 153; Keenholts v. Becker, 3 Denio, 346, 352; Terwilliger v. Wands, 17 N. Y. 54, 59; Fowles v. Bowen, 30 N. Y. 20, 22; Titus v. Sumner, 44 N. Y. 266; Bassell v. Elmore, 48 N. Y. 561.

In the case before us it did not appear that the repetition was privileged. Assuming that the story heard by Anna Brackett was the one set in motion by the defendant, there was no evidence as to how it came from him to her. He may have uttered it to a stranger and it may have passed through twenty mouths before it reached the plaintiff's workmen. We do not know whether those who repeated it believed it, or whether any one of them made it in pursuance of a supposed duty; or if a stranger and a volunteer under any circumstances could make out a case of privilege, whether such circumstances existed. See Shurtleff v. Parker, supra; Joannes v. Bennett, 5 Allen, 169, 171; Krebs v. Oliver, 12 Gray, 239, 243; Waller v. Loch, L. R. 7 Q. B. Div. 619, 621; Davies v. Snead, L. R. 5 Q. B. 608, 611.

It cannot be contended that anyone who

Exceptions overruled.

W. J. CANTILLON et al.

v.

DUBUQUE & NORTHWESTERN R. CO. et al., Appts.

(....Iowa....)

1. Railroad companies have the right to transfer their roads and franchises under the provisions of the Iowa Code.

2. A railroad company aided in its construction by a tax voted by a township may, before completion of its road, voluntarily transfer it to another company and still preserve its right to the tax; but such contracts are not enforceable without tender or delivery of stock in the company having the ownership of the property.

3. The fact that an assessment has been once used in making a levy of taxes which has passed to the county treasurer for collection will not avoid a railroad-aid tax levied upon the same assessment although the assessment for the ensuing year has been completed before the levy, if such former assessment is designed by the law or agreed upon by the parties as the basis for such levy..

was voted, rather than upon that for the year in which the tax was levied, may not be erroneous, in view of the time the tax was voted and other circumstances of the case.

(Granger and Rothrock, JJ., dissent.) 5. Where a railroad company has com. plied with the terms upon which a tax to aid it is to be collectible, by doing the required amount of work in the required time, and completing its road to the required point, the collection of the tax cannot be defeated by the fact that the road is not yet completed to the destination mentioned in the company's articles of incorporation, where the reaching of its ultimate destination was not made one of the conditions upon which the collection of the tax depended. 6. The repeal of the law under which the tax was voted will not avoid the tax where, after such vote and before the repeal, the company engaged as actively in the preparation for the work of construction as it could at that season of the year, and prosecuted its work with energy, when the weather permitted, in good faith of the tax voted. (May 29, 1889.)

the assessment for the year in which the tax

the Dubuque District Court in favor of

by statute.

The powers of corporations are such and such only as are conferred on them by the Acts of the Legislatures of the several States under which they are created and organized. Oregon R. & Nav. Co. v. Oregonian R. Co. 130 U. S. 1 (32 L. ed. 838); Thomas v. West Jersey R. Co. 101 U. S. 71 (25 L. ed. 950).

In grants by the public nothing passes by implication; and on doubtful points the construction of the grant must be against the grantee. Oregon R. & Nav. Co. v. Oregonian R. Co. supra; Dubuque & P. R. Co. v. Litchfield, 64 U. S. 23 How. 66 (16 L. ed. 500): St. Clair Co. Turnp. Co. v. Illinois, 96 U. S. 63 (24 L. ed. 651).

A new corporation may be created by the union of two or more corporations, and its powers and privileges designated by reference to the charters of other companies. Maine Cent. R. Co. v. Maine, 96 U. S. 499 (24 L. ed. 836).

tion is that the new company has all the powers and privileges, and is subject to all the restrictions and liabilities, of the old companies out of which it was created. Tennessee v. Whitworth, 117 U. S. 139 (29 L. ed. 833); Tomlinson v. Branch, & U. S. 15 Wall. 460 (21 L. ed. 189); Branch v. Charleston, 92 U. S. 677 (23 L. ed. 750); Scotland Co. v. Thomas, 94 U. S. 682 (24 L. ed. 219); Green Co. v. Conness, 109 U. S. 104 (27 L. ed. 872).

The Legislature may confer this authority either in the charter or by statute, and, when acted upon, the two corporations become united in interest and capacity, and form one single corporation. State v. Maine Cent. R. Co. 66 Me. 488; Com. v. Atlantic & G. W. R. Co. 53 Pa. 9; Phila. & W. R. Co. . Maryland, 51 U. S. 10 How. 376 (13 L. ed. 461); Meyer v. Johnston, 53 Ala. 237; Paine v. Lake Erie & L. R. Co. 31 Ind. 283; State v. Sherman, 22 Ohio St. 411; McMahan v. Morrison, 16 Ind. 172; Indianapolis, C. & L. R. Co. v. Jones, 29 Ind. 465; Boston & P. R. Co. v. Midland R. Co. 1 Gray (Mass.) 346; Tomlinson v. Branch, supra.

Acts authorizing the consolidation of corporations are Acts of incorporation. See Louisville, N. A. & C. R. Co. v. Boney, 3 L. R. A. 435, note, 117 Ind.

501.

Where the statute and the vote of the electors,

taken together, authorize the subscription and the issue of the bonds, no formal order of the county court to do those acts is necessary. Livingston Co. v. First Nat. Bank, 128 U. S. 102 (32 L. ed. 359).

Upon the consolidation of two or more railroad

Co. supra; 3 Wood, Railway Law, 1680.

their franchises are conferred upon the new comGenerally the old corporations are dissolved, and pany. Meyer v. Johnston, supra; Ferguson v. Meredith, 68 U. S. 1 Wall. 25 (17 L. ed. 604); Miller v. Lancaster, 5 Coldw. (Tenn.) 514; Eaton & H. R. Co.

v. Hunt, 20 Ind. 457; Columbus, C. & I. C. R. Co. v.

Powell, 40 Ind. 37; Indianapolis, C. & L. R. Co. v.

Jones, supra.

Consolidated corporation succeeds to rights and obligations of its constituents.

As a general rule the consolidated corporation succeeds to the rights of the constituent corpora