« PreviousContinue »
Crown vs. Leonard & Goodale.
Pending this motion, and before the argument of the same, counsel for complainant moved to except to Leonard's answer to the amended bill, and to take an order requiring him to answer over, the cause of exception being his failure to answer the charge in said amended bill, as follows, to-wit: "If said Leonard pretends to hold any property of any kind, complainant prays that he may answer when and where he acquired it, and from whom, and whether the title thereto is in him, or in him for the benefit of another, and the value of the same."
The presiding Judge overruled the motion and required the cause to proceed, to which ruling counsel for complainant excepted.
Upon the hearing of the motion to dissolve the injunction, the complainant offered, in support of the allegations of his bill, a deed from said Leonard to complainant, dated the 25th of February, 1859, covering the lot described in the bill, with the additional description that it was "the portion of said lot deeded by Lucinda Gilbert to said Leonard."
Also an affidavit of Henry Wood, in which he deposes, that the defendant, Goodale, testified as a witness on the trial of a peace-warrant against camplainant, that just before commencing to erect said building, Leonard asked complainant if he might not put one of the pillars of the house on complainant's side of the branch, and that complainant refused permission so to do.
Also the affidavit of William Wood, identifying a plat of the relative situation of the two lots and the house, in which he states that if the branch is the dividing line between the two lots, the house is from one and a half to three and a half feet over the line, on the complainant's lot.
After argument had, the presiding Judge passed an order "that the injunction be dissolved, and the bill be dismissed at complainant's cost, when the defendant, Leonard, shall file, with the Clerk of this Court, a bond in the sum of $500 00, with good security to be judged of by the Clerk, to indemnify the complainant for any damage he may recover in his action
Janes vs. Horton et al.
of trespass now pending on the common law side of this Court, and that this order be entered on the minutes."
The decision of the Judge, in passing this order, and his refusal to hear the exceptions to the defendant's answer to the amended bill, are the two errors assigned in the record in this case.
LANIER & ANDERSON, for plaintiff in error.
BAILEY & DEGRAFFENREID, for defendant in error.
By the Court.-LUMPKIN, J., delivering the opinion.
Was the Court right in dissolving the injunction in this case, and dismissing the bill? We think so. The complainant's remedy at law, either by action of trespass or ejectment, is adequate and complete. In England, a Court of Equity will not interfere ordinarily by injunction, until the title has been decided at law. To begin in Equity here, would, unless there was a sufficient reason for it, be a bad practice.
JANES, for the use of William B. Vanover, administrator, etc., vs. HORTON, et al.
1. A party who has contracted with another, to do a particular thing, upon the happening of a certain event, is bound, when that event happens, within his knowledge, to do the thing contracted to be done, without notice or order from the other party-unless such notice or demand be required by the express stipulations, or the peculiar nature of the contract. And where the event to happen is the judgment of a Court in a case in which the person contracting to do the thing was a party, the Court will presume his knowledge of the judgment. 2. In an action, by a sheriff for the use of others, upon an illegality bond, an entry by the sheriff, on the execution arrested by the illegality, that "the property was not delivered by the defendant in execution, on the day on which it was advertised for sale, after judgment, overruling the illegality, is prima facie evidence of non-delivery.
Janes vs. Horton et al.
Debt, in Terrell Superior Court. Tried before Judge PERKINS, at the May Term, 1860.
This case involves the facts following, to-wit:
A mortgage fi. fa., issued from the Inferior Court of Lee county, in favor of William G. Howard and John Heutz, as administrators of Thomas Howard, deceased, against William Horton, dated the 21st of June, 1845, was on the 28th of June, 1845, levied by William Janes, the sheriff of said county, on the following negro slaves, described in the mortgage fi. fa., to-wit: John, Edmund, Harriet and her boy child, and Dice. The defendant in fi. fa., William Horton, filed an affidavit of illegality to the fi. fa., and the sheriff left the negroes in his possession, upon his giving bond, with Clem. Jarnin, Thomas Y. Berry, Andrew J. Berry, and C. R. Alexander, as his securities, for the forthcoming of the negroes. The following is a copy of the bond:
"Know all men by these presents, that we, William Horton, Clem. Jarnin, Thomas Y. Berry, Andrew J. Berry, and C. R. Alexander, are held, and firmly bound unto William Janes, sheriff of said county, in the sum of three thousand dollars, for the true payment of which, we bind ourselves, our heirs, and legal representatives, jointly and severally, firmly by these presents. Sealed with our seals, and dated this 28th of June, 1845.
"The conditions of the above bond are such, that whereas, certain negroes, to-wit: Dice, Harriet and her child, John, and Edmund, have been levied on by virtue of a mortgage fi. fa., in favor of John Hentz and William G. Howard, administrators of Thomas Howard, deceased, against the said William Horton, and the said Horton has taken an illegality to said fi. fa., in terms of the law.
"Now, if the said Horton, or his securities for him, shall well and truly deliver to said sheriff said property, if said illegality shall be set aside, then this bond to be void, else to remain in full force and virtue."
The bond was duly signed by Horton and his securities, and delivered to the sheriff.
Janes vs. Horton et al.
At the August Term, 1845, of Lee Superior Court, the illegality was overruled, and the fi. fa. was ordered to proceed.
The sheriff advertised the property for sale on the first Tuesday in November, 1845, and Horton and his securities, failed to deliver the negroes to the sheriff, according to the terms of the bond.
William G. Howard and John Hentz both died, and John B. Vanover was regularly appointed administrator de bonis non of Thomas Howard, deceased.
On the 9th of August, 1845, suit was instituted, in Lee Superior Court, in favor of the sheriff, for the use of the administrator, de bonis non, against the securities on the bond, to recover damages for the breach thereof, Horton having left the State, carrying with him the negroes.
On the trial of the case, (which was transferred to Terrell county,' where the same was formed,) the plaintiff offered in evidence: First, the mortgage fi. fa., on which were severally indorsed, the levy on the slaves mortgaged, an entry of illegality interposed, and then this entry: "The above property being advertised for sale this day, the defendant failed to produce the same, according to his bond, 4th November, 1845, William Janes, sheriff." Secondly, an extract from the minutes of Lee Inferior Court, August Term, 1845, showing that the illegality taken to said fi. fa. was overruled, and said fi. fa. ordered to proceed. Thirdly, the bond declared on, which was objected to by counsel for defendant, on the ground "that the same was not a statutory bond, and that the plaintiff must show affirmatively, a demand on the defendants for the property, and their refusal to deliver it, before the action could be maintained, and that as there was no averment in the plaintiff's declaration that a demand was made before suit brought, the bond could not go to the jury, unless such averment was made by way of amendment."
The presiding Judge admitted the bond, but ruled that the plaintiff must aver and prove a demand of the property, and a failure or refusal to deliver it, before he could recover, to which the plaintiff excepted.
Janes vs. Horton et al.
The plaintiff then offered the depositions of William Janes, to prove that the negroes were never delivered according to the obligation of the bond, which testimony, (upon objection made,) the presiding Judge repelled, on the ground that he was one of the plaintiffs, and was interested in the event of the suit, and was therefore an incompetent witness. To which decision plaintiff excepted.
Plaintiff then closed, and, on motion of counsel for defendant, the Court awarded a non-suit against the plaintiff.
These several rulings and decisions of the Court are complained of as errors, and the plaintiff, by his writ, seeks to reverse the judgment because of such errors.
IRVIN & BUTLER, STROZIER & HOOD, for plaintiff in
W. A. HAWKINS, and WARREN & WARREN, for defendant in error.
By the Court-JENKINS, J., delivering the opinion.
The record in this case presents two exceptions, one of which was taken to the rejection of the depositions of William Janes, sheriff, who is the nominal plaintiff, and whose testimony was offered to prove that the principal obligor did not deliver the negroes in compliance with his bond.
This evidence was rejected, on the ground that the witness was interested in the event of the suit, and therefore incompetent. To the extent of liability for costs, the sheriff was apparently interested, and it does not appear that his usees, for whose benefit the suit was instituted, deposited the costs with the Clerk, or did any other act to relieve him from such liability; but in our view of this case, (as will hereafter appear,) his depositions were not at all material to the case.
This evidence having been rejected, the plaintiff closed his case, and upon defendant's motion, the Court below awarded a non-suit, to which plaintiff's counsel excepted; and this ruling of the Court we have now to review. It is not distinctly stated on what grounds this non-suit was awarded ;