The opinion of the Court was delivered by
Mr. Chief Justice McIver.
This action was brought to recover damages for the unlawful seizure and conversion of two bales of cotton, alleged to be the property of the plaintiff. While the defendants in their answer set up two^ defenses: 1st, a general denial; and, 2d, that the cotton in question was seized under lawful process, the latter seemed to be the one really relied upon. It seems from the testimony that the cotton was made on the land of the plaintiff by one S. A. Morgan, and the two bales in question had been delivered to plaintiff at one Allgood’s ginhouse, where it was seized by defendants as a part of the crop of said S. A. Morgan, under a warrant issued by a magistrate to. enforce an agricultural lien, which defendant claimed to have on the crop of said Morgan, which warrant was placed in the hands of the defendant, Williams, a constable, for enforcement. A copy of the lien claimed by Wilson, bearing date the 13th of July, 1897, which seems to be in the usual form, is set out in the “Case,” together with a paper styled an affidavit, *474which, though signed by J. S. Wilson, does not purport to have been sworn to before any officer authorized to administer an oath. There is also a copy of the warrant issued by the magistrate and directed to the defendant, Williams, requiring him to seize and sell the crop of said S. A. Morgan, and apply the proceeds of such sale to the payment of a debt of $15, alleged to be due defendant, Wilson, together with a paper purporting to be a bond or undertaking in the usual form, 'signed by said J. S. Wilson alone, without security, likewise set forth in the “Case.” It seems that the magistrate undertook to make up an issue to try who was entitled to the possession of the cotton seized under the warrant, “and whether S. A. Morgan and W. P. Reeves were tenants or hirelings of Thomas H. Prater for the year 1897, and whether J. S. Wilson has had valid liens on the crops of the said parties,” which issue was tried before the magistrate without a jury, who found “that the said S. A. Morgan and W. T. Reeves were tenants and not hirelings, and, therefore, the said liens were valid.” From this decision the plaintiff herein appeals, and the appeal was heard by his Honor, Judge Aldrich, who held that: “The magistrate was without jurisdiction to make or decide said issue;” and thereupon passed an order setting aside the decision of the magistrate as null and void. From this order there does not appear to have been any appeal. Whereupon the present action was brought, and came on for trial before the Circuit Judge and a jury, who found a verdict in favor of the plaintiff, and from the judgment entered on the verdict this appeal has been taken by defendants, based upon the several exceptions set out in the record, imputing errors and omissions to the Circuit Judge in his charge to'the jury. For a proper understanding of the question raised by this appeal, it will be necessary for the Reporter to set out in his report of the case, a copy of the charge, and the exceptions thereto.
1 2 3 The first exception, substantially, alleges error on the part of the Circuit Judge in not construing the lien himself, instead of leaving that question to the jury. While it is true *475that the force and effect of the true construction of a written instrument is for the Judge and not for the jury to pass upon, yet where, as in this case, such an instrument is introduced and no objection to it is suggested, and the Circuit Judge is not requested to instruct the jury either as to its construction or as to its force and effect, we see no error in his omitting to do so. So far as we can discover, no objection was made or could have been made to the lien, so far as its form and execution was concerned; and there was no request to charge as to that matter. The only objection, so far as we can perceive, is that the lien being dated the 13th of July, 1897, it may have been executed after the supplies had been advanced, and if so, that would have been a question for the jury to determine; but, so far as we can discover, no such question was raised in the case, and no instructions to that matter were asked for. Indeed, the whole casé shows that the real point of controversy in thecase was whether Morgan bore such relation to the plaintiff as entitled him to give a lien — whether he was tenant or hireling — and that depended upon facts to be found by the jury. Reading the charge of the Circuit Judge as a whole, as the well settled rule requires, it is clear that the Circuit Judge, in using the language complained of in the first exception, only meant that the jury should inquire whether the alleged lienor, Morgan, under the testimony before them, was a tenant or hireling; and if they came to the conclusion that he was a tenant, then that they should find the lien valid; but if he was a hireling, then they should find the lien to be invalid, because given by a person not authorized to do so. For in that portion of his charge preceding the languagecomplained of, he had explained to the jury what would constitute one a hireling, and what would constitute one a tenant; and had directed them as follows: “So, Mr. Foreman, in this case you must determine from the evidence whether this was a contract between the plaintiff, Prater, and Morgan, of hiring and service, or a contract of landlord and tenant.” We do not think, therefore, that the first exception can be sus*476tainecl. The second exception is similar, in principle, to the first, as the complaint here made is that the Circuit Judge erred in leaving it to the jury to say whether the process issued to enforce the lien was a valid process; whereas he should have construed said process himself, and instructed the jury whether it was valid or void. Here again it does not appear that the Circuit Judge was requested to give the jury any instructions as to this point. If he had been so requested, he would have been obliged to have instructed the jury that the warrant was issued without authority and was, therefore, void, for two reasons: ist. Because it appeared upon the face of the paper, purporting to be an affidavit, that it was not signed or sworn to before any officer authorized to administer an oath (Doty v. Boyd, 46 S. C., 39; 1 Ency. PI. & Prac., 317). 2d. Because the undertaking, required as a prerequisite to the issuing of the warrant, was simply the obligation of Wilson without security, and did not, therefore, authorize the issuing of the warrant. So that even if there was error as complained of, it was harmless error. But there are cases referred to in the Ency. of PI. & Prac., above referred to, which seem to hold that the omission of the signature of the officer to the paper styled an affidavit may be supplied by evidence aliunde; and if so, then the jury might inquire whether there was any such evidence in this case. It may be that such was the idea of the Circuit Judge in using the language complained of, and if so then the charge is not open to the exception taken. But in either view which has been presented we do not think there was any such error as would require a reversal of the judgment in this case. As we have remarked above, it is manifest from the examination of the testimony, which is fully set out in the case, as well as from the charge of the Circuit Judge, that the whole controversy turned upon the inquiry whether Morgan bore the relation of hireling or tenant to the plaintiff — practically, whether he could give a lien on the crop — and not upon any inquiry into the form or sufficienc)7 of the lien or the *477process issued to enforce it. If the jury found from the evidence under the instruction.of the Circuit Judge, that Morgan was a hireling and not a tenant, then the question whether the lien or the process issued to enforce it was valid or invalid became not only a subordinate but a nugatory inquiry; for if Morgan had no right to give a lien, it did not matter whether such lien or the process issued to enforce it was, in form and substance, sufficient or insufficient.
4 As to the third exception, which imputes error to the Circuit Judge in refusing to charge defendant’s fifth request, as there set out, we do not think it can be sustained. If this had been a motion to set aside the warrant issued to enforce the lien, then, possibly, the proposition embodied in the request might have some merit. But that is not the case. The defendants undertake to justify their seizure of the cotton in the possession of the plaintiff and claimed by him, under process issued to enforce an alleged lien on said cotton; and surely the plaintiff had a right, in rebuttal of such defense, to-show that there was-, in fact, no such lien, or that the process issued to enforce it, under which defendants claimed to have acted, was void, and, therefore, did not justify the seizure of the cotton. There was no error in refusing- this request.
The judgment of this Court is, that the judgment of the Circuit Court be affirmed.