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Humphries vs. McWhorter & Brightwell.

& Pulliam, of Fulton county, as endorsers, to recover the amount of two promissory notes. In that action the jury returned a verdict for the plaintiff, and a fi fa. issued upon that Judgment, which was levied on the property of Humphries. To the fi. fa. Humphries made an affidavit of illegality, swearing that he was advised and believed that the fi. fa. was proceeding against him illegally the judgment issued upon it being void as against him.

Aster argument, this affidavit of illegality was dismissed by the Court.

Counsel for Humphries then moved for and obtained a rule nisi to set aside the judgment rendered against him in the said action, on the following grounds:

1st. Because there was never issued against this movaut any second original petition or process for Fulton county.

2d. Because this moyant was never served with any copy process or copy petition.

3d. Because this movant never waived the issuing of any second original petition or its process against him, and never waived the service of any copy.

To this rule the respondent answered that the original declaration for Cass Superior Court was filed, to which process was duly attached and service had upon the maker, and that the following acknowledgment was made and endorsed upon the original petition and writ. “Georgia, Fulton county,

We hereby acknowledge due and legal service of this writ, and waive copy and copy process, and all other service by the sheriff, August 6th, 1856.

[signed] Jas. Lloyd, A. C. Pulliam and G. W. Humphries."

After argument the Court discharging the rule nisi, and refused to make it absolute,

Humphries vs. McWhorter & Brightwell. Counsel for defendant then filed his bill of exceptions, saying that the Court erred,

1st. In dismissing said affidavit of illegality.

2d. In discharging said rule nisi, and in refusing to make said rule absolute.

OVERBY, BLECKLY, and Hill, for plaintiff in error.

HAYGOOD, contra.

By the Court.—McDonald, J. delivering the opinion.

Although it appears that error is assigned on the decision of the Court on the affidavit of illegality, it is not insisted on in this Court. The argument, here, was confined to the judgment of the Court below on the motion to set aside the judgment

We think that the acknowledgement of service by the defendants, alleged in the declaration to reside in Fulton was sufficient to give the Court of Cass county jurisdiction as to them. The entire object of requiring a second original and process to issue when an endorser is sued, and resides in a county different from that of the maker of a promissory note, where the suit must be brought, is to assure the Court that the party has been served, by the proper officer, and that the party himself has legal notice of the suit. This object is fully accomplished by the acknowledgement of service by the parties in this case. The defendant was at liberty to waive a constitutional as well as a legal right in a matter of this sort. He did waive it, and must be bound by it.

Judgment affirmed.

Stancell vs. Pryor.

RIAL STANCELL, plaintiff in error, vs. WILLIAM Pryor, de

fendant 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,

Stanoell 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, admor, &c., plaintiff in error, vs. Jo

SEPH 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 bis 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 estima

ted 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

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