
    10904
    LIPSCOMB v. BANK OF TATUM
    (112 S. E. 827)
    Jury Trial—In Action by Trustee in Bankruptcy to Recover Back Payment Made by Bankrupt, Dependant Entitled to Jury Trial—Where a trustee in bankruptcy brought an action to recover back a payment made by bankrupt, on the theory that it was an unlawful preference, which defendant denied, defendant was entitled to a jury trial.
    Before MclvER, J. Marlboro, October, 1921.
    Reversed.
    Action by Lafar Lipscomb, Trustee in Bankruptcy of Hamer-Spears Co., against Bank of Tatum. From an order of reference defendant appeals.
    
      Messrs. H. J. Riley and McColl & Stevenson, for appellant,
    cite: Order is appealable: 36 S. C., 562; 43 S. C., 190. Jury trial proper: Code Proc. 1912, Sec. 312. Recovery of preferences regulated: 2 Loveland Bankruptcy (4th Ed.), 1061, Sec. 545; Id., 1054, Sec. 541. Legal and equitable issues must be tried in appropriate tribunals: 69 S. C., 141; 79 S. C., 473.
    
      Mr. J. W. LeGrand, for respondent,
    cites: Issues were equitable-: 1 Strob. Eq., 266.
    July 5, 1922.
   The opinion of the Court was delivered by

Mr. Chief Justice Gary.

This is an appeal by the defendant from an order of reference, with the proviso that it should be without prejudice to the defendant, to have its right to a trial by jury afterwards determined. .

The action is to recover from the defendant the sum of $4,034.30. The complaint alleges that the plaintiff is entitled to recover said sum, as Trustee in Bankruptcy of the Hamer-Spears Company, bankrupt, on the ground that the payment thereof was an unlawful preference. This allegation is denied by the defendant, and it alleges that the money was received by it in payment of a note and mortgage executed and recorded more than four months prior to the insolvency of said company, and that it was for money actually loaned to the company.

It is only necessary to cite the case of Hodges v. Kohn, 67 S. C., 69; 45 S. E., 102, to show that the defendant was entitled to a trial by jury, and that there was error in granting the order of reference.

Reversed.-  