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 bare judgment 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. So swears 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.

Ejectment, from Gordon county.

TRIPPE, September Term, 1857.

Tried before Judge

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 Twiggs 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

Walker, guardian, vs. Wells.

said Elizabeth Stephens was illiterate, and that the mistake may have occurred by her giving in the wrong name.

To the introduction of this testimony the defendant objected, on the ground that it was in contradiction of the grant, and therefore not admissible.

After argument, the Court sustained the objection and rejected the evidence.

The plaintiff thereupon excepted, and submitted to a nonsuit.

WALKER, for plaintiff in error.

AKIN; and WOFFORD, contra.

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

Were the depositions admissible, as evidence?

They were if the case was one of latent, and not one of patent, ambiguity. Lord Bacon's maxim is, "Ambiguitas verborum latens verificatione suppletur; nam quod ex facto oritur ambiguum, verificatione facti tollitur."

And this case was one of latent ambiguity. Lord Bacon says: "patens," (ambiguitas,) is that which appears to be ambiguous upon the deed or instrument; latens is that which seemeth certain and without ambiguity, for any thing that appeareth upon the deed or instrument; but there is some collateral matter out of the deed that breedeth the ambiguity."

In the present case, the grant is plainly a grant to Berry Stephens, an orphan. It is, therefore, a grant upon the face of which, there is nothing ambiguous.

But it turns out, that there was never such a person as Berry Stephens, an orphan. It must be, that some person, not a mere name, was meant. Who then was the person meant by the name? This is the necessary question. Who he was is ambiguous-doubtful.

Walker, guardian, vs. Wells.

Here then is a "collateral matter out of the" grant, "that breedeth the ambiguity." The case, therefore, is one of latent ambiguity; "therefore, it shall be holpen by averment." Of course averment may be supported by proof. 1 Green. Ev. sec. 297.

To this effect are Greene vs. Barnwell, 11 Ga. 283; Henderson vs. Hackney, 16 Ga. 525; same case, at Atlanta, Aug., 1857; Ford vs. Allcorn, at Atlanta, Aug., 1857; Bowens vs. Slaughters, Macon, Jan., 1858; and the Act of 22d December, 1857, declaratory of the law of evidence in such cases as the present.

To the contrary, I think, are Sykes vs. McCrary, 10 Ga 465; and Yawn vs. Tyson, 15 Ga. 491; and, therefore, they are, in my opinion, wrong.

The decision made by this Court, in this case, when the case was in the form of a bill to correct the grant, went upon the assumption, that there was such a person, as Berry Stephens, an orphan, and that, it was he to whom the grant was really issued. On that assumption, the decision still seems to us right. 17 Ga. 550.

We think then that these depositions ought to have been received. They merely went to show who was the person meant by the name and description "Berry Stephens, orphan," there never having been any person in existence bearing that name and description.

The Court having excluded the depositions, it follows, that in our opinion, there ought to be a new trial.

New trial granted.