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Pledger and Pledger vs. McCauley,

of judgment by an unemployed attorney. The defendants deny that for the assigned writs of fi. fa. the money paid was Allen Pledger's money, but insist that it was the money of Thomas Pledger. They deny that the assets of the firm were sufficient to pay the debts; state the amount that was received about $500; but they set forth no schedule of assets, nor any account thereof.

They deny that the note given by Thomas Pledger to Allen Pledger, for an interest in the land and mills, was not applied to the payment of the debts of the firm ; but on the contrary, Allen Pledger says it was transferred to certain creditors of the firm in Augusta, Hand, Williams & Co., as collateral security for the payment of a debt due then, and that he never received one cent from it. Thomas Pledger, in his amended answer, says that he paid the said note to Hand, Williams & Co., two years and six months before it became due, at a discount of twelve per cent.

The answers disclose the fact, that complainant filed a bill in equity against Thomas Pledger and the Sheriff, when a sum of money, raised upon the sale of Allen Pledger's property, on the first Tuesday in December, 1852, was in the hands of the Sheriff, and Thomas Pledger interposed the said transferred fi. fas to claim it, in which bill the complainant charged that the said writs of fi. fas, in favor of Hickman, Westcott & Co., (which were the said transferred fi. fas,) had been paid off, and were kept open fraudulently, for the purpose of defrauding complainant; and it was prayed that the said money should be paid to the satisfaction of debts against McCauley & Pledger, and to the complainant, for money advanced by him on the sale of his property, to-wit: fifty acres of land he had purchased with money of the partnership. Before the bill reached a hearing, it was agreed between the parties that the bill should be dismissed; that Thomas Pledger should withdraw the fi. fas. transferred to him, and give further time, and that the money in Court should be applied as follows:

Pledger and Pledger vs. McCauley.

Ist. To the payment of an execution in favor of G. W. Terry vs. McCauley & Pledger.

2d. To execution of W. W. Waring & Co. vs. McCauley & Pledger.

3d. To the payment in full of two of the twenty-seven fi. fas. of Hickman, Westcott & Co. vs. McCauley & Pledger, still in the hands of the original plaintiff.

4th. To the payment in full of a fi.fa. in favor of Clayton & Brigman vs. McCauley & Pledger, and the remainder, being $282 98-100, to the complainant, James McCauley, alleged by him to have been paid by him for McCauley & Pledger.

I believe I have now referred to all the parts of the bill and answers necessary to present the views of the Court. The conditional note referred to in the answers, as set forth in one of the exhibits to Allen Pledger's answer, is in the following words :

“ Four months after date I promise to pay to James McCauley, two hundred and eighty-two 98-100 dollars, provided this amount falls due him on a settlement of the firm of McCauley and Pledger, more or less. 16th March, 1852. [Signed]

ALLEN PLEDGER.”

The presiding Judge in the Court below held, upon a full consideration of the bill and answers thereto, that the injunction ought not to be dissolved. There were as many, certainly, as three issues involved in the bill and answers, to be considered by the Court in making up the judgment. First, whether the partnership extended to the land and mills; second, whether the contract, at the dissolution of the partnership, bound Allen Pledger to pay the debts of the partnership irrespective of the assets; and third, whether there was fraud in the assignment of the judgments or fi. fas. by Hickman, Westcott & Co. to Thomas Pledger.

In respect to the first issue, the answer of one of the de

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Pledger and Pledger vs. McCauley.

fendants is, that the complainant, after the establishment of the mercantile concern, attended to the store, and the defendant, Allen Pledger, attended to the mill. According to the answer of the other defendant, he worked sometimes at the store and sometimes at the mill. The conditional note given by Allen Pledger to McCauley, taken in connection with the arrangement made at the time the first bill was dismissed, is some evidence on this point. The amount of the note was to be paid to the complainant, provided that amount falls due to him, on a settlement of the firm of McCauley & Pledger. When the first bill was dismissed, the money in the Sheriff's hands was paid to the debts of McCauley & Pledger, except the sum of $282 98, which was paid to complainant, for money paid by him for McCauley & Pledger. If McCauley was to pay, why reimburse him from the money of his copartner? The amended answer of Allen Pledger says, that the firm, that is, the mercantile firm of Allen Pledg. er, was worth about the sum of five hundred dollars only, in notes, books and accounts, and some remnants of goods, and yet, the entire amount of the money in the hands of the Sheriff, raised from the sale of what is stated in the answers to have been the individual property of Allen Pledger, was applied to the payment of the debts of the firm of McCauley & Pledger, and to reimburse McCauley in a sum alleged by him to have been paid for them.

The same facts and circumstances may be referred to in considering the second issue. In reference to the third matter, to-wit: whether the assignment of the fi. fas. to Thomas Pledger was fraudulent or not, the fact that he yielded to the demand of McCauley in the first bill, that the money in the hands of the Sheriff should be applied to the payment of debts, exclusive of his own, due by the firm of McCauley & Pledger, and to the reimbursement of McCauley, one of the members of that firm, who was his creditor, if the transfer was free from fraud, is entitled to much consideration.

It is, however, by no means conclusive; for the defendant,

Pledger an'ı Pledger vs. McCauley.

Thomas Pledger, may have had a sullicient motive for his conduct, if the transfer was bona file, and the debt was really due him. But we are now considering whether the equity of the bill was fully denied by the answers. So much for the points above named.

There is another matter connected with these transactions to be noticed. Allen Pledger turned over to Iland, Williams & Co., the notes of Thomas Pledger, as collateral security for a debt due them by McCanley & Pledger. Thomas Pledger bought up that note, having two years and an half to run, at twelve per cent discount. A creditor holding collaterals has no right to make such a sacrifice of the securities of his debtor. The interest of Allen Pledger was certainly sacrificed in this arrangement, and he had a right to call on his creditor to allow him the full amount of the collateral security, less the legal discount, on his debt; and there being no eridence that he did not submit quietly to the loss, might, taken in connection with his relationship to one of the parties, and the extraordinary length of time to which the credit was extended, be regarded as throwing suspicion on the transactions between him and his father, but it should be remarked that it affords no conclusive presumption of wrong.

Again; the defendant, Allen Pledger, gives no account of the stock of goods on hand, the notes, book accounts, &c. ; but contents himself with making a lumping estimate of them all, at about five hundred dollars. He ought to be able to show an account of the stock on hand at that time, and furnish a schedule of notes and accounts due, and what was collected on them. He may be able to make such an exhibit now. The Court below, under all these circumstances, did right in refusing the motion.

Judgment affirmed

Markham vs. The State.

Nathan M. MARKHAM, plaintiff in error, vs. The STATE OF

GEORGIA, defendant in error.

[1.] The possession and occupancy of a house by a person, as a dwelling house, is

sufficient evidence of ownership thereof in that person, to support an allegation in an indictment for larceny from the house, that the prisoner entered the dwelling

house of that person. [2.) When there is no evidence that a boarder hired a particular room to lodge in,

it is not error in the Court to refuse to charge the jury, that the indictment ought to bave charged the offense to bave been committed in the bired lodgings of a boarder.

Larceny and new trial, from Fulton county. Decided by Judge Bull, October Term, 1857.

Nathan M. Markham was indicted for entering the house of Aaron M. Thomason, and stealing therefrom a silver watch, the property of Jeremiah Parker.

Upon the trial the Solicitor General introduced John Cook, who swore, that he was boarding at the house of Thomason; Parker and prisoner roomed together; Parker had been in the room two or three months; prisoner two or three days; Parker and witness went into the room one morning, Parker going to open his trunk which was not locked; the same evening prisoner was sitting in the porch about sundown, intoxicated, and remained there till 9 or 10 o'clock; witness, Parker and another inan carried him in the room to bed, and as Parker was pulling off his shoes, something dropped on the floor, and a watch was found and picked up; this watch witness had seen Parker have before. They got the Marshal and carried prisoner to the calaboose; While there Parker told prisoner why they had taken him there; that they had found the watch in his shoe, and that the prisoner had broken open his trunk and taken it; prisoner said he had taken the watch off the washstand, and that he carried it to a jeweler's on Whitehall street; witness and Parker went to Marchal's; at the calaboose the prisoner did not deny that it was the watch

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