The opinion of the court was delivered by
Mr. Justice Pope.The first entitled action, being one for claim and delivery to recover possession of 300 barrels of rosin. Worth $382.50, came on for trial before Judge Hudson at Florence. A trial by jury being waived, it was heard and decided by the judge.
It seems that plaintiffs based their right to the property upon an instrument in writing. The defendant denied that the instrument relied upon by the plaintiffs vested the property in plaintiffs, and as a further defence set up that he had assigned his whole estate (including these 300 barrels of rosin) to one E. E. McKnight, for the benefit of his creditors, before this action was commenced. The Circuit Judge held that plaintiffs could not set up their instrument of writing as a mortgage, and gave judgment for defendant for the return to him by plaintiffs of the 300 barrels of rosin; but in case this could not be done, then he adjudged that plaintiffs pay to the defendant $382.50 as their value.
The second action of plaintiffs was to recover the sum of $7,723.29 from the defendant, by reason of his indebtedness to plaintiffs on account for that amount. A jury trial having been waived, the Circuit Judge (Judge Hudson) heard the same, and' adjudged that the plaintiffs recover of defendant the sum of $7,723.29. No appeal is taken from this judgment. But the plaintiffs having made an oral motion before the judge to allow the plaintiffs to satisfy defendant’s judgment for $382.50, by crediting that amount on plaintiffs’ judgment for $7,723.29, the judge refused to make such an order, but did not reduce his refusal to writing.
Therefore, the plaintiffs appeal from the first judgment: 1. Because the judge erred in holding that the naval stores of defendant were not covered by the bill of sale of the plaintiffs. 2. The judge erred in holding that the defendant, H. B. Lee, could recover the naval stores, or their value, after he had made a general assignment for the benefit of his creditors.
*351 *34We think the Circuit Judge was correct in his interpretation of the instrument of writiug, executed by H. B. Lee to the plaintiffs, when he held that thereunder there was no mort*35gage of the 300 barrels of rosin. The language used in that instrument affecting the naval stores of which the
300 barrels of rosin was a part, is so nearly identical with that used by Pierce to W. W. Whilden & Co., which latter was passed upon by this court in the case of Whilden & Co. v. Pearce, 27 S. C., 44, that we do not deem it necessary to say more than that such decision is conclusive of the present question; but we think the Circuit Judge erred in granting a judgment in favor of the defendant, H. B. Lee, for the return of the 300 barrels of rosin, or in case that could not be done, then that the plaintiffs pay to him the value of such rosin, to wit: $382.50.
2 The defendant in his answer averred that he was not the owner of this property, but set up that his assignee, E. E. McKnight, was such owner. The judgment in every case should be responsive to the pleadings. It would operate as a great hardship to these plaintiffs to pay Lee $382.50, and then afterwards be required to pay the true owner, E. E. McKnight, a similar amount on the same cause. While, therefore, we sustain the judge in holding that this property did not belong to the plaintiffs, still under the pleadings he ought, of his own motion, to have required E. E. McKnight to intervene by petition, setting-up his claims to the property in dispute, or in the event it could not be restored by plaintiffs, to its value, $382.50. And ac-. cordingly we shall by our order remand the cause to the Circuit Court, to the end that E. E. McKnight, as assignee, may by its order be required to come in as a party to this cause.
3 So far as the two grounds of appeal numbered 3 and 4— which are as follows: 3. The judge erred in holding that the judgment of the defendant for the rosin, or $382.50, the value thereof, could not be set off against the judgment of the plaintiffs for $7,723.20. 4. The judge erred in holding that the court could not set off the judgment on the account, $7,723.20, against the judgment for $382.50 in the action for claim and delivery — are concerned, they must be dismissed: First, because of our foregoing conclusion that McKnight, as assignee, should be made to intervene as a party. Second, because there is no valid determination of the question here suggested by the Circuit Judge. His oral refusal cannot *36be reviewed here. Third, if such oral refusal could be reviewed, the judgments involved are not in the same plight-— one in rem, the other ex contractu.
It is the judgment of this court, that the judgment of the Circuit Court in the first case cited be reversed, and that it be remanded to the Circuit Court to carry out the views hereinbefore expressed by its order making B. E. McKnight, as assignee of the estate of H. B. Lee, a party defendant. And it is the judgment of this court, that the judgment of the Circuit Court in the second case cited by its title hereinbefore be affirmed.