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Nicholson vs. The State of Georgia.

duce the body," &c. Prince, 470. It is essential therefore to the validity of the instrument, that it appear on the face of it that the party stands charged with some crime against the laws of Georgia.

[2.] But it is needless to labour a point that is not controverted. When however the presiding judge conceded, as he was bound to do from the law, that it was necessary that the recognisance should recite the offence, he yielded every thing. For if one principle of the law is better established than another, it is, that oral evidence shall in no case be received as a substitute for a written instrument where the latter is required by law, or to give effect to a written instrument, which is defective in any particular which by law is essential to its validity. To admit it, would be to allow the weaker evidence to usurp the place of the stronger, and to render the most solemn, authentic and permanent instruments of evidence which the law can devise, uncertain, inoperative and ineffectual. Where the law from principle or reasons of policy requires written evidence, to admit parol in its place would be to subvert the rule itself. The same rule applies where the law prescribes a certain form of written evidence. To allow a defect in the instrument to be supplied by oral evidence, would be pro tanto to dispense with the law. Hence, in general, where the law requires a formal written instrument, if the document offered in evidence be defective so that it cannot operate without collateral aid, the defect cannot be supplied by oral testimony. Starkie, 996, 997, 998.

As well attempt to gild the sunbeam, as to make clearer this lucid exposition of the law directly upon the point in issue.

In Darby vs. Hunt, 2 South Car. R. 740, in debt on a ne exeat bond, Nott, Justice, in delivering the opinion of the court says: "The Court must judge of the validity of this bond from the instrument itself. If it is not good on the face of it, parol evidence could not make it so, and ought not to have been admitted."

The case is wholly free from difficulty. The judgment below must be reversed and the cause remanded.

Hurt vs. Mason..

No. 55.-WILLIAM HURT, plaintiff in error vs. JOHN M. MASON, defendant in error.

[1.] When a defendant in execution files an affidavit of illegality thereto, he is bound at his peril to state all the grounds of illegality which exist at that time, and present the same to the court in the manner required by the statute and rule of court. [2.] No second affidavit of illegality will be allowed for causes which existed at the time of filing the first.

Affidavit of Illegality. From Hancock Superior Court. Tried before Judge SAYRE. April Term, 1847.

An execution from said Superior Court, issued upon a judgment rendered in that Court in favour of Hurt, the plaintiff in error, against one Thomas Mason and the said John M. Mason the defendant in error, was proceeding, when it was arrested by an affidavit of illegality made by the defendant in error, alleging that it was proceeding illegally against him, for that he had paid the money due thereon, except the sum of thirty-five dollars, which he had tendered to the plaintiff, who refusing to receive it, he had deposited the same in the clerk's office.

At the aforesaid term of the Court below, the affidavit of illegality came on to be tried, when the plaintiff, by his counsel, moved to dismiss the same, on the ground that a previous affidavit of illegality had been filed in the same cause and disposed of. The previous affidavit, with the judgment of the Court thereon, was produced. The ground assumed in said previous affidavit was, that the deponent, John M. Mason, had paid the whole amount due on said execution, except the sum of thirty-two dollars and twelve cents, and that he had tendered payment of said balance, which had been refused. The judgment of the Court upon said previous affidavit of illegality was, that it should be dismissed, on the ground that the balance admitted to be due was neither paid, nor tender thereof legally made, or deposited.

Whereupon, after argument, the Court below overruled the plaintiff's motion to dismiss, and the plaintiff's counsel exceptedFirst. Because said decision is contrary to law.

Second. Because the same is contrary to the rules of court, which rules are obligatory in the Superior Courts, when not in violation of some statute.

Third. Because a defendant in exccution is not permitted to in

Hurt vs. Mason.

terpose affidavit of illegality more than once to the same fi. fa., either for the same cause or any other cause; but after one affidavit is disposed of by the Court, such defendant is left to such remedies as he may have, independent of the Statute of Georgia authorizing affidavits of illegality to executions.

THOMAS, for the plaintiff in error.

The illegality complained of is the same in both cases, but whether the same or not, is to be received but once. See rule of Superior Court.

Writ of audita querela at common law lies for same causes as affidavit of illegality under Statute of Georgia. 3 Black. Com. 405, 406.

Though the writ at common law is matter of right, and can be instituted a second time after once dismissed, yet no second injunction to stay the execution can be had. 3 Black. Com. 406,


LEWIS, for defendant.

By the Court-WARNER, J. delivering the opinion.

From the record in this case, it appears that John M. Mason filed his affidavit of illegality to an execution proceeding against him in favour of Wm. Hurt, according to the provisions of the Act of 1799, which declares, "In all cases where execution shall issue illegally, and the person against whom such execution may be shall make oath thereof, and shall state the causes of such illegality, the sheriff shall return the same to the next term of the court out of which the same issued, which court shall determine thereon at such term." Hotchkiss, 602. By the Act of 1821, the Judges of the Superior Courts were required to convene at the seat of government once in each year for the purpose of establishing uniform rules of practice throughout the several circuits in this State. Hotchkiss, 500. By the 16th common law rule established by the judges in convention it is declared, "When an affidavit of illegality is made on account of partial payments made on the execution, the defendant at the time of making such affidavit must pay up the amount he admits to be duc, or the sheriff shall prod to raise that amount and accept the affidavit for the balance.

Hurt vs. Mason.

No second affidavit of illegality shall be received by any sheriff or other officer." Hotchkiss, 948.

The defendant stated in his affidavit, "that the fi. fa. was proceeding illegally against him, for that he had paid the money due on said fi. fa. except the sum of thirty-five dollars, which he has tendered to the plaintiff, and which the plaintiff has refused to receive, and that he has deposited said amount in the clerk's office." The plaintiff moved the Court below, to dismiss the affidavit of illegality, on the ground that a previous affidavit of illegality had been filed in the same cause, and disposed of. The plaintiff then produced the previous affidavit and the judgment of the court thereon. In the former affidavit of illegality to the same execution, the defendant stated, "that the execution was proceeding against him illegally, for that he had paid the whole amount due on said execution except the sum of thirty-two dollars and twelve cents, and that he had tendered the payment of this balance, and it had been refused." The first affidavit was made on the 25th day of August, 1846, the second was made on the 26th February, 1847. After hearing the first affidavit of illegality, the Court below "ordered that said affidavit of illegality be dismissed, on the ground that the balance admitted due is neither paid, or tender legally made, or deposited." On hearing the motion to dismiss the second affidavit of illegality, the Circuit Court overruled the motion, to which decision the plaintiff excepted, and now assigns the same for error in this Court.

We are of the opinion that the motion to dismiss the second [1.] affidavit of illegality ought to have been allowed, according to the terms of the rule of practice before cited.

That rule was intended to prevent vexatious delay in the collection of the demands of judgment creditors. The defendant who has had his day in court, is bound at his peril, to state all the grounds of illegality which may exist at the time of filing his affidavit, and strictly comply with the rule on his part. If he fails to do so, it is his own fault, and the courts cannot, under the [2.] rule, grant him further indulgence. If he could be permitted to state one ground only, when he has several, and file separate affidavits for each separate ground when one shall be decided against him, or make out his affidavit defectively and then be allowed to file another, the mischief would be intolerable. The only way to maintain the integrity of the rule, and protect the rights of plaintiffs in execution against unreasonable delay, is to require the

Anderson and others vs. The State of Georgia.

defendant to state all his grounds of illegality at once, and present the same to the court in the manner required by the law and the rule of practice established by the judges in convention; and if he fails or neglects to do so, he must abide the consequences of his own negligence. Whether a defendant in execution will be permitted to file a second affidavit of illegality, for causes which did not exist at the time of filing the first, but which arose subsequently, and which could not have been included in the first affidavit, we express no opinion. We leave that an open question, to be decided whenever it shall be made. Let the judgment of the Court below be reversed.

No. 56. JOHN R. ANDERSON and others, plaintiffs in error vs. THE STATE OF GEORGIA, defendant in error.

[1.] The Act of the Legislature of 1841 repealed the charter of the Bank of Darien, and transferred its assets to the Central Bank. John R. Anderson, Esq. was appointed by the Central Bank an agent to collect these assets, and gave bond. Held that this bond was correctly made payable to the Governor of the State of Georgia.

[2.] An agent who admits money in his hands belonging to his principal, is liable for interest thereon from the time he received it.

[3.] He who has fraudulently received, or wrongfully detains the money of another, is chargeable with interest thereon from the time he received it.

[4.] In order for a demand to be liquidated, it is not necessary that it should be in writing.

Debt on Bond. From Baldwin Superior Court. Tried before Judge MERRIWETHER. March Term, 1847.

For the facts of the case, and the points made, see the opinion delivered by the Supreme Court.

HARDEMAN, CONE, and HARRIS & DAY, for the plaintiffs in error, contended

First. That there is no proper obligee to the bond; that it should have been made payable to the Central Bank, and not to the Governor. Act of 1841, p. 22.

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