Wimberly vs. Collier.

counsel fees and costs of the litigation. The jury, under the rulings of the Court, found a verdict for Collier. A motion for a new trial was made on various grounds, and amongst the rest, because the verdict was contrary to the evidence. The application was refused, and this decision was excepted to, and is now assigned as error.

Owing to the defect in the bill of exceptions, the charges of the Court in the case, and various other rulings complained of in the progress of the trial, cannot be considered-the presiding Judge having failed to certify that they were true.

But it is enough for the purposes of this decision, to examine the proofs, and see whether the finding was not against the evidence.

It is in proof that Collier had notice of the ejectment suit; that he was present at the trial, defending the action by his counsel. He seeks to avoid a recovery upon the ground that he applied to H. H. Tarver, to whom he turned over the deed from Nathan Johnson, under which he claims, and that he refused to let him have the deed.

This deed was not necessary to the defence of the action. The land was granted to Mrs. McKay, the plaintiff in ejectment, as a widow. Collier claims under N. Johnson, who he alleges, was the husband of the grantee. He had only to show the intermarriage of Mrs. McKay, the grantee, with Johnson, and that would have shown title, out of her. But this he failed to do on the trial of the ejectment. Had the deed from Johnson to him been present, it would have availed him nothing, without this additional proof; and that proof would have defeated a recovery without the deed; and this proof he failed to make in the present action, which was essential to his defence.

The truth probably is, he can never make this proof. The grantee of this land residing always in the city of Savannah, and most respectably connected, never was the wife of Nathan Johnson, nor of any other Johnson, nor of anybody else, since the death of her first husband, as the proof in this record abundantly demonstrates. Nathan Johnson, the grantor of Collier, may have married some other woman—

32 20 125 613

Little vs. Owen.

some other widow of that name; whether he did or not, does

not appear.

We think, then, the record of the recovery in ejectment, entitled Wimberly, as trustee, to recover the price paid by H. H. Tarver for the land, with interest thereon, and the costs of that suit.

A claim is set up for counsel fees in the ejectment cause, and the bill subsequently filed to get rid of the $850 mesne profits; and there is respectable authority which holds that this is a legitimate item in the assessment of damages for a breach of warranty in the sale of land. If so, why not of personal property?

Without deciding this question, which our Courts have not favored, we think the want of diligence on the part of Tarver, in defending the ejectment, and the fact that Collier did employ counsel himself, is sufficint to negative this claim in the present case.

Judgment reversed.

LITTLE US. OWEN.

Interest is suspended against a garnishee, during the pendency of the garnishment.

Complaint in Dougherty Superior Court. Tried before Judge ALLEN, at the December Term, 1860.

There is but one question presented by the record in this case, which arises out of the following state of facts:

At the December Term, 1859, John T. Dickerson sued out a summons of garnishment against Albert G. Owen, requiring him to answer on oath what he was indebted to, or what effects of Leonard Little he then had in his hands, or had at the time the summons of garnishment was served. This garnishment continued in Court until the June Term, 1860, at which time the same was dismissed.

Little vs. Owen.

On the 14th of May, 1860, William G. Little brought an action against William G. Owen, to recover the amount of two promissory notes, for five hundred dollars each, dated 20th December, 1858, one due six months, and the other twelve months after date, made by said Owen, and payable to Leonard Little, or bearer.

When the case was submitted to the Jury on the foregoing facts, the presiding Judge charged the Jury: "That if there was a summons of garnishment served upon the defendant, at the instance of John T. Dickerson, against Leonard Little, by which the defendant, Owen was prevented from paying the sum due on said notes sued on, for the space of six months, then said Owen was entitled to a credit for the interest accruing on the notes during the six months that he was so prevented from paying them, and that it was not necessary for said Owen to pay what he admits to be due on the notes, into Court, unless required so to do, in order to entitle him to the credit for said six months' interest."

Under this charge, the plaintiff accepted a confession of judgment for the amount due on the notes, less the said six months' interest, reserving his right to except to the charge of the Court, and said plaintiff now asks a reversal of the judgment on the ground of alleged error in said charge.

HINES & HOBBS, for plaintiff in error.

STROZIER & SMITH, for defendant in error.

By the Court.-LUMPKIN, J., delivered the opinion.

It seems that Albert G. Owen, the defendant in error, was garnisheed by John T. Dickerson, to depose what he was indebted to Wm. G. Little. The case was pending six months, when the garnishment was dismissed. Owen being sued by Little on the debt which he owed him, Owen claimed to have the interest suspended while the garnishment was pending, which the Court allowed, and, we hold, rightfully.

By the Act of 1855, all other acts upon the subject of garnishment are repealed. No provision is made by this

Durham vs. Hartlett.

act for the garnishee to discharge himself by paying the money which he owes the defendant into Court. He could not pay it of course, to the defendant. It would seem reasonable, therefore, that the interest should be suspended during that time. Besides, the defendant will not lose it. He can sue Dickerson on his bond, and the lost interest will constitute an item of damage which Little has sustained by reason of sueing out the garnishment.

We express no opinion, whether Owen might not have been protected, had an order been taken requiring him to pay the money into Court, although we see no authority under the Statute for such a proceeding. No order was taken in this case.

Judgment affirmed.

DURHAM vs. HARTLETT.

When D. & H. enter into a copartnership in a brick-yard, D. giving H. his note for a portion of the brick then on hand, his share of the rent of the yard for three years, and the brick to be made thereon, and they dissolve at the end of eleven months, D. having paid a part of the note in the meantime, and the former partners specify minutely what each is to do, in settling up the business, and no reference is made to the note; the presumption is that D. is bound to pay the balance due thereon.

Complaint in Dougherty Superior Court. Judge ALLEN, at the June Term, 1860.

Tried before

The facts and questions presented by the record in this case, are as follows, to-wit:

On the 29th of June, 1854, Daniel Hartlett and Lindsey H. Durham entered into a written contract of partnership, "in the business of making and selling bricks," in the city of Albany, which was to continue for three years, unless dissolved by mutual consent. Hartlett had a brick yard near Albany, with some 30,000 bricks on hand. Durham gave Hartlett his note for $456, payable the first of October, 1854,

Durham vs. Hartlett.

aud furnished one two-horse wagon, which, under the contract, was to entitle him to one-half interest in all the bricks then in the yard, (except 12,000, which belonged to Hartlett individually,) and to one-half of all that might be made during the continuance of the partnership. Hartlett then had three negroes employed in the yard, which he was to furnish during that year, and the balance of the hands were to be paid for by the firm, to be styled Daniel Hartlett & Co. Hartlett was also to furnish the horses he then had in use, for the year 1854, which were to be fed by the firm. Hartlett was to give the business his whole attention, and to furnish Durham with a weekly statement of the expenses of the concern, as well as all sums of money received, and all bricks sold, which Durham was to keep properly, in books, in which books each partner was to enter all moneys received and paid out by him for the firm-the books to be, at all times, subject to the inspection of each partner. Under the contract, neither partner could transfer his interest in the concern, without the other's consent, nor bind the firm in any way without the consent of the other partner.

The business continued until the 28th of May, 1855, when the partnership was dissolved by written agreement of the partners, in which it was stipulated, "that the books of the firm should be turned over to Messrs. Hines & Hobbs for collection, who were also to pay any debt against the firm, the justness of which was admitted by either partner, for the year 1854 or 1855; that Hartlett should take the brick machines at cost and expenses, and all the negroes hired by the firm, (except Dew's boy,) at the amount given for them, which should be charged to him as cash, and he was to take up the notes given by the firm for their hire; Durham was to take Dew's boy, at the price for which he was hired, and take up the notes given by the firm for the hire; that these notes should be paid promptly; that Durham was to take the brick on the kiln, at $7 per thousand, to be counted out to him by one chosen by the partners, and the amount to be charged to him as cash.

After the dissolution of the partnership, Hartlett occupied