
    7998
    GIBBES MACHINERY CO. v. HAMILTON.
    Issues — -Foreclosure.'—Defendant is not entitled to a trial by jury in an action for foreclosure of a mortgage on machinery by the assignee when he sets up the defenses, misrepresentation, breach of warranty of the condition of the machinery, failure of consideration, and a counterclaim for damages for fraud and collusion between plaintiff and his assignor.
    Before J. Wm. Thurmond, Special Judge, Hampton, June, 1910.
    Affirmed.
    Action by Gib'bes Machinery Company against W. T. Hamilton ’and International Harvester Company of America. Defendant Hamilton appeals.
    
      Messrs. T.. A. Hamilton and B. R. Hiers, for appellant,
    cite: Judge should not refer issues for trial without consent: 64 S. C. 393; 34 S. C. 169. Issues here should be tried on calendar of issues of fact: Code of Proc. 373; 35 S. C. 80.
    
      Messrs. W. S. Smith and C. B. Searson, contra. Mr. Tozvnsend, oral ¡argument for Mr. Smith.
    August 10, 1911.
   The opinion of the Court was delivered by

Mr. Justice PIydrick.

In an action for foreclosure by the assignee of a mortgage given to secure the purchase price of machinery, defendant, the mortgagor, denied the ¡allegations of the complaint, and set up, as affirmative defenses, misrepresentation and breach of warranty of the condition of machinery, failure of consideration-, and a counterclaim for damages for fraud and collusion between plaintiff and his assignor, the original mortgagee, in obtaining the mortgage from defendant. .Held, that defendant was not entitled to a trial by jury. Bouland v. Garpin, 27 S. C. 235, 3 S. E. 219; McLaurin v. Hodges, 43 S. C. 187, 20 S. E. 991; Pratt v. Timmerman, 69 S. C. 186, 48 S. E. 255.

Affirmed.  