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Thomas vs. Ellis.

COOPER; WATERS; and KNIGHT, for plaintiff in error.

IRWIN & LESTER, contra.

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

Can a person who has been arrested under a ca. sa. and has given bond under the honest debtor's Act of 1823, be arrested under the same ca. sa, a second time, before the case made by the giving of the bond, has been ended? We think not,

"Upon such debtor or debtors tendering such bond or bonds, it shall be the duty of such Sheriff, Deputy or Constable, as the case may be, to release him, her, or them from confinement or custody.Pr. Dig. 492. This is what the Act says.

We think, therefore, that the Court erred in dismissing the illegality.

Judgment reversed.

DANIEL THOMAS, plaintiff in error, vs. JAMES Ellis, defend.

ant in error.

A jury is bound to consider, even illegal testimony, if it goes before them, without


Certiorari, from Fannin county. Decided by Judge Rice, November Term, 1857.

This case came up in the Court below upon a certiorari. Thomas sued Ellis in a Justice's Court on two notes. To that action Ellis pleaded the general issue; and further, that

Thomas vs. Ellis.

an attachment had been sued out against one Bryson, and garnishment been issued against him, Ellis, upon which judgment had been rendered against him in Tennessee. The verdict was for the plaintiff, and defendant, Ellis, filed his petition for a writ of certiorari. In the petition the above facts were stated, and that at the time the notes were traded to Thomas by Bryson, the garnishment was known to him.

This petition was answered, and when it came on to be heard, a motion was made to dismiss the certiorari, on the ground that there was no error set out in the petition.

This motion was overruled by the Court, and the certiorari sustained, and a new trial ordered ; and to these decisions the defendant excepted.

MARTIN, for plaintiff in error.

CHASTAIN; and UNDERWOOD, for defendant in error.

By the Court.-BENNING J. delivering the opinion.

It seems that Bryson held notes on Ellis, to the amount of $120. That Bryson was indebted to McCoy, that McCoy sued Bryson on this indebtedness in Tennessee, and garnisheed Ellis, that judgment was rendered against Ellis, as garnishee, for $40 85, on which Ellis paid $20 ; that while the garnishment was pending, Bryson traded the notes he held on Ellis, or at least two of them, amounting to $50, to Thomas, who had notice of the garnishment; that, afterwards, Thomas sued Ellis on these two notes, and Ellis pleaded the foregoing facts, and proved them by the depositions of Bryson and those of Corinth, the magistrate who gave the judg. ment in Tennessee; that, notwithstanding the plea and proof, the jury found for Thomas $50; that Ellis petitioned for a certiorari and obtained it, and that it was answered by the Justice of the Peace.

Thomas vs. Ellis.

This was the case in the Superior Court.

This being the case, the counsel for Thomas, moved to dismiss the certiorari, placing the motion on the ground, that “no error was alleged in the petition.” This motion the Court overruled, and that was excepted to.

And then the Court “ upon reading the answer” sustained the certiorari, and that was also excepted to.

As to the first exception it is sufficient to say, that the answer was in, and that if it showed error, the certiorari ought to have been sustained, even if the petition showed none.

Did this answer show error ? The answer showed the facts above stated.

It was argued for Thomas that even the answer did not show any error; and in support of the argument, several positions were taken, as follows:

1st. That there was no proof of any judgment in the garnishment in Tennessee, it being assumed, that the depositions of the Tennessee magistrate, proving the judgment, were not evidence of a proper sort, for proving a judgment, and, that as such, they must be treated as amounting to no proof at all of this judgment. But they were in, and without objection, and, after verdiet, it is too late to insist, that the jury were not bound to regard even illegal testimony admitted to them without objection.

We do not decide that this was illegal. We decide nothing as to that.

We think, however, legal or illegal, as it went to the jury without objection, they were bound to consider it.

2dly. That a barejudgment in garnishment without a satisfaction of it, is not a bar to a suit by the debtor, against the garnishee.

True; but here Ellis had paid a part of this judgment, $20,

3dly. That the indebtedness of the garnishee, amounted to as much as $120; that the judgment against him was for only $40 85. Consequently, that if he had paid all of it, he would be still left owing some $80, of the indebtedness; and

Thomas vs. Ellis.

that this was more than Thomas claimed of him, he claiming only $50, the amount of two notes.

But there is some room for an inference, that Ellis had paid to Bryson all of the indebtedness, except enough to cover the judgment in garnishment. When Thomas bought the notes on Ellis, he bought them at his own risk, knowing of the pending garnishment. Soswears Bryson. Thomas was present when the judgment on the garnishment was rendered, and, in reply to a question of the Justice rendering the judgment, he said, that Mr. McCoy, (the garnishing creditor,) would be able to prove, that Bryson was the holder of the notes on Ellis, at the time Ellis was garnisheed, for Bryson had told him, that he held the notes at that time. So swears the Justice.

There is some ground here, for an inference, that Ellis had paid Bryson all of the indebtedness but $50, a sum about sufficient to cover the garnishment, judgment, principal, interest and costs.

The effect of the judgment sustaining the certiorari, was merely, to bring about a new trial. And we think, that with such a ground as this, for such an inference as this, a judgment merely ordering a new trial, ought not to be disturbed, and we think this, the more, as it does not appear, that on the trial, Thomas attempted to meet Ellis's plea, by showing this matter. Is it not an after thought, suggested, not by the case as it is, but by the case as it happens to stand stated by the Justice of the Peace, whose memory or whose sense of materiality may have left out some of the things which really existed.

Judgment affirmed.

Walker, guardian, vs. Wells.

Dawson A. WALKER, guardian, plaintiff in error, vs. ANDREW

J. Wells, defendant in error.

A grant was to “Berry Stephens, orphan." There was no person of that name, but

there was a person who was the orphan of Berry Stephens. Held, that parol evidence was admissible, to show him the person meant.

Tried before Judge

Ejectment, from Gordon county. Trippe, September l'erm, 1857.

This was an action of ejectment, for the recovery of a lot of land No. 282, of the 13th district and 3d section of Gordon county.

Upon the trial the plaintiff introduced the grant of the lot in question, from the State, to Berry Stephens, orphan, of the 633d district of Dooly county. He also introduced his letters of guardianship.

Plaintiff then tendered in evidence the depositions of Amos Lane, and Elizabeth Lane his wife, Granville White, and Nancy White his wife. These depositions went to prove that Berry Stephens, in 1823, married Elizabeth White, and died in 1825 or 1826, leaving an only child called William Henry Stephens; that Elizabeth Stephens then moved to her father's, in Tsviggs county, with the said William Henry Stephens; and that her father moved to Dooly county, with his daughter Elizabeth and grand-son William Henry Stephens and that William Henry Stephens lived in the 633d district of Dooly county at the time of giving in for draws in the Cherokee land lottery; that Elizabeth Stephens gave in for Berry Stephens' orphan, William Henry Stephens. The witnesses also stated that they did not think it possible that there was any other person in the said district answering the description; that Elizabeth Stephens, in 1834, married Amos Lane, who died in 1839; that the friends of William Henry Stephens have always considered the lot of land as belonging to him, and have paid taxes for it as his property; that the

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