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Stancell vs. Pryor.

RIAL STANCELL, plaintiff in error, vs. WILLIAM PRYOR, defendant in error.

Words not actionable of themselves may be made so by averment and proof of a colloquium and innuendoes.

Slander, from Walker county. Tried before Judge TRIPPE, at November Term, 1857.

This was action of slander by Rial Stancell against William Pryor, for words spoken, &c.

The words alleged to have been spoken, as laid in the declaration, were, "Rial Stancell stole my steel trap-nobody else knew where it was."

Columbus F. Roberts, the only witness examined on the part of the plaintiff, testified, that late in the fall of 1854, he called at defendant's house on business; defendant told witness that he had lost his steel-trap; witness asked him if he suspected any person of taking it; he replied, "Yes, Rial Stancell is the only person who knew where it was; I told him where it was the other evening as we came from Brook's sale, and I have missed it from the place since I told Stancell where it was." The witness further testified that about six months afterwards, he and defendant exchanged a few words upon the subject, but the words he has forgotten, but recollects the impression left upon his mind was, that defendant was still charging plaintiff with having taken the steel-trap. That both conversations were commenced by defendant; the first conversation, at defendant's house, was before the bringing of this suit, but he thinks the second was afterwards: does not remember the words used on the last occasion, but recollects that they left him under the impression that plaintiff had taken the steel-trap.

This is the substance of this witness' testimony. Plaintiff then closed.

Defendant moved for a nonsuit,

Stancell vs. Pryor.

1st. Because the words as laid in the declaration, had not

been proven.

2d. Because the words proven are not actionable.

The Court sustained the motion on the second ground.

Plaintiff moved to continue the case, to enable him to prove, by the next Term of the Court, the words spoken, he having acted upon the belief that the testimony of Roberts (which was by commission) would carry the case to the jury. He further proposed to let the case go to the jury and let them determine the motives which influenced defendant in speaking the words as proven. Both of which motions the Court refused, and ordered a nonsuit, and plaintiff excepted.

ALEXANDER, STANCELL & CROOK, for plaintiff in error.
BLACK, contra.

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

The declaration in this case might have been amended by alleging a colloquium, that the defendant's steel-trap had been stolen, with suitable averments, that the words were spoken of and concerning the plaintiff, in reference thereto; and on proof of the said allegations with the words, the action might have been sustained. The Court below held that if the words as proven had been actionable, the declaration might have been amended, but we understood the decision to be, that the declaration could not have been so amended as to have sustained an action upon the words: words in themselves not actionable may be made so by avering a colloquium with suitable averments to apply the speaking to the subject.

Judgment reversed.

Strickland, adm'r, vs. Dent.

JAMES H. STRICKLAND, adm'r, &c., plaintiff in error, vs. JoSEPH E. DENT, defendant in error.

[1.] A person who sells land, receives notes for the purchase money, and gives a bond to make a title when the money is paid; on the death of the purchaser insolvent, is entitled to have the land sold and the proceeds applied to the payment of his debt, and the excess alone can be claimed by the creditors.

[2.] The vendor, in such case, cannot claim a ratable proportion of his debt estimated at the full amount, from the general assets of the estate, and then claim the land, as not having been paid for. The debt of which he has a right to claim a ratable payment, is the balance remaining after crediting the amount for which the land may have been sold.

Equity, from Heard county. Decided by Judge HAMMOND, August Term, 1857.

This bill was filed by James H. Strickland, as administrator of Solomon T. Strickland, deceased, against Joseph E. Dent. The bill states that the intestate contracted with the defendant, Joseph E. Dent, for the purchase of a house and lots in the town of Franklin, for $1,000, and took the defendant Dent's bond for titles. That his intestate gave Dent two promissory notes in payment far said house and lots, one of said notes payable 25th day of December, 1855, and the other the 25th day of December, 1856, and that action had been brought on the notes. That the intestate, Solomon T. Strickland, died insolvent, on the 11th of October, 1855, out of the State of Georgia, and that complainant was duly appointed his administrator, and returned an inventory of the property of the deceased to the Court of Ordinary, except certain property specified. That the complainant held the bond of Dent for title to the house and lots; that no part of the purchase money for the same had been paid, and that the estate of the intestate was insufficient to pay to Dent the whole amount of his notes for the purchase money, and other debts of equal dignity, and that Dent refused to make titles to the house and lots until the whole of the purchase money had been paid. That complainant had collected all the debts

Strickland, adm'r, vs. Dent.

of the intestate, with certain exceptions set out in the bill; that many creditors of the intestate had given to complainant statements of debts and claims; and that some creditors of the deceased, to-wit: Smith & Wood, Rollins & Hall, T. M. Jones, and McMillan & Harvey, had obtained judgments in attachment against the property of the intestate, in the Justices Court of the 788th district, in said county of Heard, after the death of the deceased, and before any administration was taken out on his estate. That certain other creditors had brought their actions against the intestate's estate, which were then pending; that in consequence of the great number of the debts, and the inability of complainant to determine, (without discovery from the creditors,) how to rank such debts, complainant could not safely pay the debts without the direction of a Court of Equity. That the said defendant Dent insisted that the two notes given him by intestate, in payment of the house and lots, should be paid equally with the other notes due from the estate. Complainant, therefore, prayed that the creditors of the intestate might be decreed to make a discovery of their claims; that the contract between the intestate and the defendant Dent might be rescinded, and Dent ordered to deliver up to complainant the notes for the purchase money for the said house and lots, and that the complainant might be ordered to deliver up the bond for titles to the same to the said defendant, or that the said house and lots might be decreed to be sold, and the proceeds of the sale of the same paid out to the creditors of the deceased, according to equity and justice, and the decree of the Court; that complainant might, by the decree of the Court, be directed and advised how to pay out the assets of the estate; and that a writ of injunction might issue, restraining creditors who have commenced their suits against complainant, as administrator, from further prosecution of the same, and those creditors who had not commenced suits on their claims, from doing the same, till the final hearing of the cause. There is a prayer for general relief.

Strickland, adm'r, vs. Dent.

To all of this bill the defendant, Joseph E. Dent, filed a demurrer, except to so much as appertained to marshaling assets, and to a sale of the house and lots by said defendant to complainant's intestate, and the relief prayed therein on the ground that there was no equity in complainant's bill to authorize the particular relief prayed for against said defendant, or any other relief except marshaling assets.

After argument, the Court sustained the demurrer, and dismissed for want of equity so much of complainant's bill as related to the restraint of Joseph E. Dent from proceeding to judgment on said notes.

Counsel for complainant excepted to this decision.

OLIVER, for plaintiff in error.

BUCHANAN & W., contra.

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

[1] There can be no question, that according to the facts alleged in this bill, there is not the slightest ground for the rescission of the contract of the sale of the house and lots by the defendant, Dent, to the complainant's intestate, at the instance of the complainant. Nor is there any equity in the prayer asking a decree of the sale of the property, and the application of the proceeds of the sale to the payment of the debts of the intestate, and to allow Dent to come in pari passu only, with the other creditors of the deceased. The title cannot pass from Dent until the purchase money is paid, except under such decree as a Court of Chancery ought to make in the premises.

[2.] But there are allegations in the bill which entitle the complainant to an injunction against the prosecution of the suits of Dent on the notes. The bill alleges that Dent insists

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