Opinion
14317
June 22, 1936.
Before DENNIS, J., Marlboro, August, 1935. Affirmed.
Action by J.L. Powers, in behalf of himself and all others similarly situated, who come in and bear their share of the expenses of the action, against the Fidelity Deposit Company of Maryland, in which the Standard Oil Company of New Jersey and others intervened. From a judgment confirming a Special Referee's report with certain exceptions, defendant and interveners appeal.
The Referee's report and orders of Judge Dennis follow:
SPECIAL REFEREE'S REPORTTo the presiding Judge of the Fourth Judicial Circuit:
This matter comes before me under the order of the Honorable E.C. Dennis, Judge of the Fourth Judicial Circuit, dated January 21, 1935, whereby it was referred to me as Special Referee "to take the testimony therein and try all issues of law and fact arising from the testimony and the pleadings and to report the testimony together with his conclusions of law and fact to this Court with all convenient speed."
It was further ordered, "That he (the Special Referee), do advertise for all parties claiming to be entitled to claim under the qualification bond of the National Surety Company filed with the Insurance Commissioner of the State of South Carolina in The State, a daily newspaper published in the City of Columbia, South Carolina, once a week for four consecutive weeks, requiring them to file and prove their claims on or before the 28th day of February, 1935, before him herein and that he further be ordered and directed to forthwith send written notices to any and all parties of whom he is aware is entitled to file claims under said bond to so file and prove their claims on or before the 28th day of February, 1935. That any and all parties claiming under the said bond are required to file their claims with the said R. E. Carwile, as Special Referee, on or before the 28th day of February, 1935, otherwise they shall be and are hereby forever barred from participating therein."
In accordance with the order a "notice to claimants on or under qualification or licensing bond of National Surety Company" to file their claims in compliance with said order was duly published in The State, a newspaper published daily in the City of Columbia, S.C. January 29th, February, 5th, 12th, and 19th, as shown by the affidavit of the printer on file herein.
In further compliance with said order the undersigned Special Referee issued and mailed written notices to all parties that he "was aware that were entitled to file claims."
On or before the 28th day of February, 1935, the following claims were filed:
Judgments Date Entry Amount Roll J.L. Powers ....... 25 April, 1933 1 May, 1933 $ 556.73 6,261 Clark Heating Co .. 26 April, 1933 26 April, 1933 465.68 132-15 B. Hart Marshall .. 19 April, 1933 29 April, 1933 1,016.70 3,424 Anderson Co ....... 24 Feb., 1933 20 July, 1933 12,491.92 16,157 J. Vernon Phillips, ind ............... (plus costs) and as admr ....... 22 July, 1933 24 July, 1933 533.85 4,446 Earl Brown et al., as admr. .......... 22 Oct., 1934 2,000.00 Later a claim reduced to judgment was filed on behalf of Standard Oil Company — this claim was filed in accordance with the order of the Honorable G. Dewey Oxner, Circuit Judge, dated February 26, 1935. The claim is as follows: Standard Oil Company v. National Surety Company, amount $19,468.74. Judgment dated 19th March, 1935. Judgment entered, 23d March, 1935, Judgment Roll No. 24389.Still later, under the order of the Honorable E.C. Dennis, Circuit Judge, Standard Contracting Company, G.C. Phillips Tractor Company and Galion Iron Works Manufacturing Company, filed the following claims which had been reduced to judgment: Standard Contracting Company v. National Surety Company et al., judgment dated 19th March. 1935, $6,411.00, judgment entered, 25th March, 1935, Judgment Roll No. 24389 (portions of this judgment, it appears, were assigned to Phillips Tractor Company, $1,750.00, and to Galion Iron Works Manufacturing Company, $750.00).
On or prior to the 28th of February, 1935, the following claims were filed, which at the time had not been reduced to judgment.
CLAIMS, BUT NOT REDUCED TO JUDGMENTST.K. Trotter, Receiver of the Bank of Bethune, John Morgan, Bank of Nichols, Ramsey Bryan, Myrtle Beach Farms Company, Chapin Company.
JUDGMENTS OBTAINED IN MAGISTRATE'S COURTWoodrow Pennington v. Wolfe Construction Co., G.F. Fulmer and L.W. Boykin, 77 judgments, amounting to $2,273.81.
With reference to the claims of Chapin Company, Myrtle Beach Farms Company, and Ramsey Bryan, it should be stated that those claims had not been reduced to judgment at the time of filing, but under the order of Honorable M. M. Mann, Circuit Judge, dated 19th of March, 1935, judgments in their behalf were rendered against the National Surety Company as follows:
Chapin Company, $4,324.08; Myrtle Beach Farms, $82.92; Ramsey Bryan, $342.73.
There is nothing to show, however, that these three last-named judgments have been entered on the abstract of judgments, nor was any order taken allowing the filing of these judgment claims after the 28th of February, 1935, the time fixed for filing of claims in the order of the Honorable E. C. Dennis. However, as before stated, the claims were filed on or before the 28th of February, 1935, in behalf of these three claimants. Moreover, no objection was made at the hearing as to the form of the filing of these three claims.
It will be noted that the judgments herein listed are not of even date, and, inasmuch as some of the now judgment creditors claimed that they were prevented from obtaining judgment sooner because of certain orders passed in the cases of Carolina Contractors Equipment Supply Company, etc., v. Copeland-Wey, Inc.; National Surety Company et al., and also Carolina Contractors Equipment Supply Company v. National Surety Company et al., it will be necessary to set forth in short detail the history of these proceedings.
Two actions were instituted. The first was a creditors' bill for the benefit of Carolina Contractors Equipment Supply Company and on behalf of all other creditors of Copeland-Wey, Inc., for claims on account of the South Carolina State Highway Project Nos. 775 and 612, in Horry County. This matter was referred to J.C. Townsend, Master for Richland County, on the 11th of February, 1933. In the second cause, receivers were appointed for the National Surety Company, and the bond here in question was awarded to the receivers as an asset of the National Surety Company. This case was also referred to the said Master for Richland County. And in both cases all claimants were restrained and enjoined from bringing any actions except in the two cases above noted. And in both cases the Master was required to advertise for creditors and creditors directed to file their claims within the time fixed in said orders.
Numerous proceedings were had, and the Master did not make his report until some time in March, 1935. And in accordance with said report, the Honorable M.M. Mann, Judge of the First Circuit, on March 19, 1935, directed that judgment be entered as to the claimants in both causes against the National Surety Company, 59 in number, among whom were the Standard Oil Company, Ramsey Bryan, Myrtle Beach Farms, Chapin Company, and Standard Contracting Company, hereinbefore mentioned.
On July 3, 1934, the Honorable W.H. Townsend, Circuit Judge, appears to have modified his previous orders in the following particulars: "This decree is without prejudice to the right of judgment creditors in South Carolina to prosecute and maintain an action on the qualification bond heretofore filed with the Insurance Commissioner in this State in the sum of $10,000.00, since it appears that the proceeds of said bond do not constitute assets of the National Surety Company, and without prejudice to the right of any judgment creditor to file his claim for any deficiency with the liquidator of the National Surety Company."
Again, on the 6th day of October, 1934, Judge M.M. Mann passed an order declaring that so much of the order of Judge Townsend, dated the 2d of May, 1933, declaring the bond of the Fidelity Deposit Company of Maryland was an asset of the National Surety Company and awarded said bond and rights therein to the Receivers and directing the Insurance Commissioner of South Carolina to deliver the same to the Receivers, "be and the same is in such respects hereby modified, vacated and rescinded, with the express proviso, however, that the said order shall remain in full force and effect save as hereinabove modified, vacated and rescinded."
It is highly possible that Judge Mann's attention was not called to the order of Judge Townsend of date July 3, 1934, wherein he had modified his previous orders to the same extent.
To my mind, the order of Judge Mann, dated March 19, 1935, heretofore noted, becomes a vital part of this case, and I am therefore attaching a copy of this order to my report.
The immediate action here under consideration arises under Section 7947, Code of Laws of S.C. 1932.
The qualification of licensing bond was given by Fidelity Deposit Company of Maryland on the 28th day of March, 1931, and was for the sum of $10,000.00, and conditioned according to the statute to pay "the full and just sum of any and all judgments entered up against said principal in any Court of competent jurisdiction in this State (any such judgments hereby being declared to be a lien upon this bond)."
The Fidelity Deposit Company of Maryland does not deny its liability, and according to the statement of its counsel, the sum of $10,000.00 has been place in the hands of the Clerk of Court of Marlboro County, S.C. under an order of this Court.
The sole question here is the disposal of this fund of $10,000.00.
CONCLUSIONS OF LAWUnder the case of Nofal v. Lincoln Reserve Life Insurance Company et al., 173 S.C. 42, 174 S.E., 652, only judgment creditors of National Surety Company are entitled to share in the fund of $10,000.00 paid into Court by Fidelity Deposit Company.
Therefore, the following claimants cannot participate in the distribution of this fund: T.K. Trotter, Receiver of the Bank of Bethune, John Morgan, Bank of Nichols, Woodrow Pennington, Wolfe Construction Company and Boykin Fulmer.
The National Surety Company was on the bond of Boykin Fulmer. However, no judgment was obtained against the National Surety Company. It follows, therefore, that this company has no claim on the fund here.
This leaves the claims reduced to judgments for consideration.
Two very important words in this statute (Section 7947), must be considered and construed — they are "entered" and "lien."
A judgment obtained is not a lien upon personal property until execution is issued and levy made — and we are here dealing with personal property. It necessarily follows that before execution can issue the judgment must be entered. It appears to me, therefore, before a judgment can be said to be a lien it must have been entered up in accordance with law. This statement is fully sustained by our statute law and by the decisions of our Supreme Court.
By reference to Sections 663, 664, 742 and 743, Code of Laws of 1932, Volume 1, it will be at once seen that before judgment can become a lien or an execution issue, the judgment must be entered upon the book entitled "Abstracts of Judgments." These statutes have been interpreted by our Supreme Court from time to time, and it has always held that a judgment must be entered up before the lien is established. In the case of De Saussure v. Zeigler, 6 S.C. 12, the Court said: "The lien is only created by the entry itself." Cited with approval, Reid v. McGowan, 28 S.C. 74, at page 79, 5 S.E., 215.
Again, in the case of Mason Risch Company v. Music Company, 45 S.C. 11, 22 S.E., 755, 757, the Court said: "Section 308 of the Code [now Section 742] * * * and the other provisions of the Code relative to executions, all show that the law contemplates an entry of the judgment in the book entitled `Abstract of Judgments' before the execution can properly be issued."
To the same effect is the decision of the Court in the case of Farmers' Merchants' Bank v. Holliday, 108 S.C. 116, 93 S.E., 333.
Moreover, the statute here specifically declares that when so entered it shall be a lien on fund or bond.
What is a lien? "A lien may be general, particular or special. The last two terms meaning about the same. A lien is not property in the thing nor does it constitute a right of action for the thing. It more properly constitutes a charge upon the thing." A special lien "is in the nature of a particular lien being a lien upon particular property." Here we have a special lien fixed by statute, and, in my opinion, the judgment becomes a lien and becomes operative as soon as entered up in the Court of competent jurisdiction. The statute simply does away with execution and levy and fixes a lien on the thing charged as soon as entered, and mandatorily provides for enforcement by suit in the county in which recovered.
The word "lien" as used in the statute has a legal significance and cannot be construed to mean a claim against the fund. It is a charge upon the fund as soon as entered up as provided in said statute.
It will always be presumed that the Legislature fully understood the import of words used in the statute.
"It will be presumed that the Legislature understood the meaning of the words it used, that it intended to use them, and unless the popular meaning is vague and indefinite, that it intended to use them in their ordinary and common meaning — or if they have a well defined legal significance that they are used in that sense." See 59 C.J., 1011, 1012.
Having come to the conclusion that when a claim is reduced to judgment and duly entered upon the "Abstract of Judgments" that it becomes a lien upon the fund, the next question that arises is: Are the judgments under the terms of the statute concurrent, and therefore, the judgment creditors should share ratably in the disposition of the fund or should they be paid off in the order of their acquisition and entry?
The statute does not in express terms fix the order of payment, and where a statute does not so fix the order of payment, resort must be had to the general rule.
"In the absence of statutory regulation the common law establishes liens in the order of their acquisition, the first in order of the time standing first in order of rank." 17 R. C.L., § 20, p. 610.
"Ordinarily it may be regarded a universal principle that the prior lien gives a prior right, which is entitled to prior satisfaction out of the subject it binds." Paik v. Chung, 123 Wn., 37, 211 P., 729, 731 (cited 17 R.C.L.); See, also Virginia Development Co. v. Crozer Iron Co., 90 Va., 126, 17 S.E., 806, 44 Am. St. Rep., 893.
Corpus Juris lays down the rule as follows: "Priority in Time: As to both legal and equitable liens, it is a well-established rule, in the absence of statutory regulations to the contrary that a lien which is prior in time gives a prior claim and is entitled to satisfaction out of the subject-matter it binds, before other subsequent liens binding the same property. Thus as a general rule in equity, if the liens are equal in all other respects the one prior in time will prevail." See 37 C.J., § 40, 328.
Pomeroy's Equity Jurisprudence, Vol. 2, § 682, states the rule as follows: "In all of its phases, in all instances where it may be invoked, the equitable doctrine concerning priorities is embodied in three most general and fundamental rules, the first of these rules being as follows: Among successive equitable estates or interests, where there exists no special claim, advantage, or superiority in any one over the others, the order of time controls. Under these circumstances, the maxim, Among equal equities the first in order of time prevails, furnishes the rule of decisions"; and further, in Section 683, same volume: "Two persons have equal equitable interests in the same subject-matter, when each is equally entitled, with respect of his equitable interest, to the protection and aid of a Court of equity. When the Court is dealing with such successive equitable interests upon the same subject-matter, and they are all thus equal the priority in time determines the priority in right."
I find no rule of law contrary to these citations.
Attention is called in the case of Eads v. Surety Company, reported in 178 Ga. 348, 173 S.E., 163.
This was a deposit case. The Court followed the rule of law hereinabove set forth and held that the senior judgment must be paid first.
Therefore, I conclude that the judgment first obtained and duly entered should be first satisfied out of the fund, the date of entry of the judgment fixing the time of the establishment of the lien.
It is urged, however, that the statute should be given a liberal construction and to hold otherwise than that the liens are concurrent would lead to injustice, oppression, and hardship and that the statute intended to provide for a ratable distribution of the fund. It does not seem to me that such a position can be upheld nor by any possibility of reasoning can it be held that this statute is an equitable one. It bars all claims, however just, that have not been reduced to judgment. The claims filed in this case and not reduced to judgment are all outlawed, yet in all likelihood these claims are as just and equitable as those reduced to judgment.
The Legislature has fixed the limits of recovery and the necessary steps for recovery. Judgment first and then the judgment must be entered up in a Court of competent jurisdiction and thereby the lien is established. We are familiar with the words of Mr. Justice Woods in the case of Livingstain v. Columbian Banking Trust Co., 77 S.C. 305, 57 S.E., 182, 184, 22 L.R.A. (N.S.), 442, 122 Am. St. Rep., 568, to wit: "no rule of equity appeals more to the judicial conscience than that which requires the assets of an insolvent corporation to be distributed ratably among creditors." He who claims a departure from this rule must establish his right clearly.
It is clear to me that the Legislature, so far as the disposition of the fund here is concerned, has taken this case out of that rule, for as stated heretofore, this statute does not seek to do equity — it outlaws all claims not reduced to judgment, however just they may be — it puts a premium upon diligence.
One of the claims filed was that of a judgment obtained by Earl Brown as administrator, 22d day of October, 1934, in the United States Court. There is nothing to show that this judgment has ever been entered upon the abstract of judgments in any county of this State. In order for this particular judgment to constitute a judgment lien in the State Court, it would be necessary for a transcript of the judgment to be filed and entered in some county in this State. The original of a judgment obtained in United States Court is filed and entered in the office of the Clerk of that Court rendering the judgment and when the transcript of the judgment is filed and entered in the proper office in the respective counties of the State it thereupon becomes a lien. See Lineker v. Dillon (D.C.), 275 F., 460, and Rhea v. Smith, 274 U.S. 434, 47 S.Ct., 698, 71 L.Ed., 1139. There is nothing to show that this has been done, and since this is a State statute and this is an action in the State Court, it appears to me that this should have been done in order to create a lien.
I have heretofore reported that three judgments, to wit, Ramsey and Bryan, Myrtle Beach Farms Company, Chapin Co. have not been entered of record, and having heretofore recommended that only judgments entered can participate in this fund it follows that these three should be excluded.
However, should the Court conclude that all judgments are concurrent, and the fund should be distributed ratably, and entry of the judgment is not essential to the creation of the lien, then I call attention of the Court to the order of Judge Mann, which is attached to this report, in which he gave judgment in 59 cases against the National Surety Company. Twelve of these judgment creditors have filed their claims in this immediate action. Judge Mann directed the Clerk to enter all these judgments forthwith, of these Standard Oil Company, Standard Contracting Company and the A.G. Boone Company have had their judgments entered upon the Book of Abstracts of Judgments. The latter company has filed no claim with me.
I also call attention to the fact that although J.L. Powers, Anderson County; Clark Heating Company, B. Hart Marshall, J. Vernon Phillips, individually and as administrator, Earl Brown, as administrator, had already acquired judgments against the National Surety Company, as heretofore shown, were again given judgments against said National Surety Company. In fact it appears that all claims filed with the Master, whether heretofore reduced to judgment or not, were treated upon an equal basis, and judgment given in each case.
If under the statute it is not necessary to the creation of a lien for judgment to be entered, and if it be the law that this fund should be ratably distributed among all judgment creditors, then does it not follow that all these 59 judgments, whether entered or not, should participate in the distribution of this fund? It is true claims have not been filed with me in 47 of these cases, yet if the judgment is a lien, without entry, can the Court bar the right of action provided in the statute before the statutory period fixed for existence of the lien has expired? Unless, of course, such judgment creditors who have not filed their claim are barred by the original injunction order of Judge E.C. Dennis filed 30th of June, 1934.
Having come to the conclusion that the judgments should be paid off in the order of their entry, and that the fund should not be prorated among the judgment creditors, I, therefore, recommend that the clerk of Court of Marlboro County be authorized and directed to dispose of said funds of $10,000.00 as follows:
First, to payment of the costs and expenses of this action, including such fees as the Court may allow:
Second, to pay off and satisfy in full the judgments according to the following order and rank until the fund is exhausted:
Judgment Creditors Date Entry Amount Clark Heating Co ....... April 25, 1933 April 26, 1933 $ 465.68 B. Hart Marshall ....... April 19, 1933 April 29, 1933 1,016.70 J.L. Powers ............ April 25, 1933 May 1, 1933 556.73 Anderson Co ............ Feb. 24, 1933 July 20, 1933 12,491.92 Plus costs J.V. Phillips, ind., and as admr. July .... July 22, 1933 July 24, 1933 533.85 Standard Oil Co ....... March 19, 1935 March 23, 1935 19,468.74 Standard Contracting Co., G.C. Phillips Tractor Co., Galion Iron Works Mfg. Co .. March 19, 1935 March 25, 1935 6,411.00 These judgments are entitled to draw interest from date at the legal rates of interest.If this conclusion and recommendation meets with the approval of the Court, the first three judgments will be paid in full and balance will be applied to the judgment of Anderson County.
It will be noted that the judgments of Clark Heating Company, B. Hart Marshall, J.L. Powers, and Anderson County were obtained against the National Surety Company prior to the restraining order of Judge W.H. Townsend, dated May 2, 1933, went into effect. The restraining order of Judge Townsend, dated February 11, 1933, did not apply to these four judgments as these actions did not grow out of the Horry County projects.
The proof of claims, the exhibits filed, and testimony taken by me are filed with this report.
ORDER CONFIRMING REPORT OF SPECIAL REFEREEThis matter comes before me on exceptions to the report of the Special Referee, R.E. Carwile. Exceptions were made and filed by various parties to this action, all of whom were present and made argument.
After hearing arguments and after due consideration, it is ordered, that the report of the Special Referee is hereby confirmed in all his rulings, except as modified herein.
Interest should not run on any of the judgments subsequent to the filing of the suit by J.L. Powers. The costs of the case should be taxed against the four judgment creditors participating herein according to the amount of their judgments, as of the date that the J.L. Powers suit was commenced.
ORDEROn the date hereinafter set forth a hearing of exceptions to the report of the Special Referee, R.E. Carwile, was held before me at Darlington. Certain of the exceptions which had been made to the report of the Special Referee were heard, and it was decided by the Court that the report should be confirmed with such modifications as will appear by reference to order of August 22d.
Among the exceptions noted were those made on behalf of Chapin Company, Ramsey Bryan, and Myrtle Beach Farms Company, through Wright Burroughs, attorneys, which exceptions were, in part, directed to the holding of the Special Referee that these claimants were not entitled to share in the fund for the reason that, among others, there had been no entry of judgment by said parties. In view of the decision of the Court to the effect that the fund involved in this action should be distributed in accordance with the priority of entry of judgment, rather than on a ratable basis, the exceptions of these three claimants based on the holdings of the Special Referee with reference to entry of judgment, which exceptions are numbered 1, a and b, become academic, since, even if the judgments of these three claimants have been properly entered, they are not to share in the fund, since said fund would be exhausted before any part thereof would reach them. This being the case, the exceptions were not argued, and it is ordered by the Court that these particular exceptions are held open and may be taken up by the three claimants, without prejudice, at such time as they may be advised so to do.
Messrs. Benet, Shand McGowan and F. Ehrlich Thomson, for appellant, Standard Oil Co. of N.J., and Herbert Dial, for appellants, Standard Contracting Co. and its Assignees, cite: Construction of statute: 173 S.C. 42; 174 S.E., 652; 143 S.C. 104; 141 S.E., 180; 149 S.C. 178; 146 S.E., 815; 86 S.C. 419; 68 S.E., 561; 129 S.C. 480; 124 S.E., 761; 37 C.J., 319; 59 C.J., 969; 1 Bay, 93. Assets of insolvent corporation should be distributed ratably among creditors: 134 S.E., 510; 77 S.C. 305; 57 S.E., 182; 22 L.R.A. (N.S.), 442; 122 A.S.R., 568; 143 S.C. 516; 141 S.E., 705; 159 S.C. 200; 156 S.E., 446; 161 S.C. 450; 159 S.E., 807; 173 S.C. 496; 176 S.E., 346; 108 S.C. 504; 94 S.E., 535.
Messrs. Wright Burroughs, for appellants, Chapin Co., Myrtle Beach Farms Co. and Ramsey Bryan, cite: As to ratable distribution of assets of insolvent estate: 77 S.C. 305; 57 S.E., 182; 136 S.C. 514; 134 S.E., 510.
Messrs. Hall, Vassy Hall, for other appellants.
Messrs. J.W. LeGrand, G.E. Dudley, Tatum Jennings, Leon W. Harris, Kurtz P. Smith, Harold Major, A.H. Dagnall, John W. Crews and C.G. Wyche, for respondents, cite: Construction of statute: 59 C.J., 952; 173 S.C. 42; 108 S.C. 116.
June 22, 1936. The opinion of the Court was delivered by
This action by J.L. Powers, in behalf of himself and all others similarly situated, who come in and bear their share of the expenses of this action, as plaintiffs, against the defendants, Fidelity Deposit Company of Maryland and the following interveners who are appellants: Standard Oil Company of New Jersey, Standard Contracting Company, G.C. Phillips Tractor Company, Galion Iron Works Manufacturing Company, Chapin Company, Myrtle Beach Farms Company, Ramsey Bryan and J.V. Phillips, individually and as administrator, was commenced in the Court of Common Pleas for Marlboro County on or about the 20th day of June, 1934. Thereafter, June 30, 1934, another action entitled Anderson County, plaintiff, against Fidelity Deposit Company of Maryland, defendant, was commenced in the County of Anderson, and by order of his Honor, Judge E.C. Dennis, the two actions were consolidated. It appears from the record before the Court that the first-named action, that is, the action in Marlboro County, was in the form of a creditor's bill, and the cause of the action involved the collection of the proceeds of a qualification bond filed by the National Surety Company with the Insurance Commissioner of the State of South Carolina under the statutes thus providing, the said National Surety Company having become insolvent and unable to meet its obligations. In this connection it may be further stated that it also appears from the record that the action commenced in Anderson County was instituted for the same purpose as the action instituted in Marlboro County, but instituted in behalf of Anderson County alone. Judge Dennis, by order, referred the matter to a Special Referee for the purpose of taking the testimony, trying all issues of law and fact, and reporting his conclusions of law and fact to the Court.
The Special Referee, Honorable R.C. Carwile, pursuant to the said order of reference, took the testimony presented in the case and reported the same to the Court, together with his findings of fact and conclusions of law, in which report all questions are fully considered. The case thereafter went before Judge Dennis on appeal from the Master's report. Judge Dennis confirmed the report, except in certain minor particulars. In this connection we call attention to the fact that in his consideration of the exceptions to the Referee's report, his Honor, Judge Dennis, filed two orders, both bearing date August 22, 1935, and in the second order issued by his Honor, Judge Dennis, certain exceptions from the Master's report were held open for the purpose of being taken up by the claimants mentioned in said order without prejudice at such time as they might be advised. We are satisfied with the finding and holding of the lower Court.
It is, therefore, the judgment of this Court that the exceptions be and are hereby overruled, and the judgment of the lower Court affirmed.
Note: The report of the Referee, and the two orders of his Honor, Judge Dennis, bearing date August 22, 1935, will be incorporated in the report of the case.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BONHAM, BAKER and FISHBURNE concur.