
    No. 3327.
    Visanska v. Workingmen’s Building and Loan Association,
    November Term, 1893.
   Action by Rachel Visanska to restrain a sale by defendant under the power contained in a mortgage executed by plaintiff to defendant, plaintiff alleging that she was a married woman at the time, the debt was her husband’s, and she without power to make a valid mortgage to secure it. The testimony was taken by the master and reported to the court, and the Circuit Judge (Witherspoon) dismissed the complaint for want of sufficient, evidence to sustain the allegations of the complaint as to the loan and the use of its proceeds.

On appeal by plaintiff, the Circuit decree was affirmed, this court saying, “that although the evidence was conflicting, yet there was quite enough to sustain the conclusion reached by the Circuit Judge.” The opinion concludes as follows:

“What was said by this court more than ten years ago in the case of Gary v. Burnett, 16 S. C., 633, and repeatedly acted upon since, is so applicable to the present case that we quote the following: ‘The testimony was taken by a referee, who was appointed simply for that purpose, and not charged with the duty of hearing or determing any of the issues in the case; and it is argued that when the testimony is in writing, the rule is different from that which prevails when the witnesses are examined orally before the judge, and that this court will more readily overrule the findings of fact by a Circuit Judge when he hears the case upon written testimony than in those cases where the witnesses are examined orally before him. We think, however, that the rule is substantially the same, and before this court will reverse the findings of fact by a Circuit. Judge, even when based upon written testimony, we must be satisfied that the clear result of undisputed testimony points manifestly to a different conclusion from that reached by the Circuit Judge. Where the testimony is conflicting, and the Circuit Judge has, upon weighing it, reached a conclusion which can be supported by the testimony, we will not interfere, although there may be other testimony in the case pointing to a different conclusion. We are not to substitute our judgment for that of the Circuit Judge as to the comparative weight of the testimony,’ ” &c.

filed March 14, 1894.

J. «S'. Muller and F. H. Weston, for appellant. John T. Sloan, jr., contra.

Opinion by

McIter, O. J.,  