Russell vs. Arnold.

terval of but a single day, between the passage of the one, and the passage of the other.

Courts must construe the words of a law, in the sense in which the words are used by the Legislature, even should such a construction do violence to the words.

But would construing these repealing words, as, not extending to the exempting laws, be, of necessity, doing violence to the words? In short, is the "subject" of the said Act of 1845, (one of the exempting laws,) "garnishments;" or is it not rather exemption? The object of the Legislature in passing that Act, was to exempt "wages," in the cases to which the Act refers, from the debts of the laborer or mechanic; the means taken, was merely to relieve the wages from liability to garnishment-they as a debt, not being liable to be reached by any other process. And, certainly, what the legislator, in making a law has for his end, may, with as much propriety, as what he takes for his means, if not with more, be called the "subject" of that law.

There is then as much reason to say, that, exemption from debt was the "subject" of the Act of 1845, as there is to say, that garnishment was the subject of the Act; is there not more?

Holding, therefore, that words which say, they repeal all Acts on the "subject" of garnishment, do not repeal this Act of 1845, is not by any means, of necessity, doing violence to the words. As well might we say, that holding that the words do, repeal that Act is, of necessity, doing violence to the words! In effect, the Act is one which makes the wages to which it refers, exempt from debt, not merely from one mode of collecting a debt.

We think, then, that the Court below erred in holding that: the Act was repealed, by the repealing section of the general attachment Act of 1856.

Judgment reversed...

Christian vs. Mansfield.

JOHN M. CHRISTIAN, plaintiff in error, vs. LUCIUS MANSFIELD, defendant in error.

When the party resides out of the county, the attorney may make the showing for a continuance, provided for by the 35th rule of Court. The case is the same, when the privy liable over to the party, resides out of the county, if it is he that defends the suit.

Complaint, from Stewart county.

KIDDOO, April Term, 1858.

Tried before Judge

This was a suit against John M. Christian on a note, signed by James C. Christian as principal, and Thomas Stovall and John M. Christian, securities.

When the case was called for trial, defendant by his counsel moved for a continuance, stating together with other matters, that they were employed by James C. Christian, who was a resident of Randolph county, and who was the principal in said note sued on; that the defendant, John M. Christian, who was absent, was only security, and a resident of Stewart county.

The Court refused the motion, and the case was tried and verdict rendered for the plaintiff, whereupon defendants counsel excepted and assign error.

TUCKER & BEALL, for plaintiff in error.

J. L. WIMBERLY, for defendant in error.

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

According to the exposition which the 35th rule of Court has received in practice, the attorney may make the showing for a continuance, when the party resides out of the county. And so is the common law. Tidd Prac. 722, H. Black. 637.

In the present case, James C. Christian was the principal in the note, and, though not himself sued, was defending the suit, which was against John M. Christian, a surety. Tuck

Holliday vs Riodan.

er & Beall were the attorneys of James C., as the principal. He then was a privy to the suit, and as such, would have been bound by the judgment, as between himself and John M. Christian.

This made him occupy such a relation to the suit, we think, as to give him, with respect to continuances, the rights which he would have had, if he had been a party to the suit.

He resided out of the county.

We think, therefore, that the case was one in which the attorneys might make the showing for a continuance. And therefore, we think, that the judgment of the Court below.

was erroneous.

Judgment reversed and new trial ordered.

FRANCES HOLLIDAY, plaintiff in error, vs. JEREMIAH RIODAN, defendant in error.

To entitle a party to the process authorized by the act of 1830, to authorize the issuing of writs of ne exeat &c., the affidavit of the party applying, required by the statute, must be positive.

Equity, from Worth county. Decision on demurrer by Judge LAMAR, April Term 1858.

Jeremiah D. Riodan filed his bill against Frances Holliday in which he alleged that he was the guardian of his daughter Frances, legitimate child of his marriage with Jarra Lane, a widow, daughter of John Smith, deceased. John Smith died leaving children by his first wife, to-wit: Frances Holliday, Elizabeth Russell and Jarra Lane, and also leaving a will which was proven and admitted to record.

Holliday vs. Riodan.

The bill further sets forth certain equitable claims of Riodan, as guardian, in right of his daughter Frances, to the property left by the will of Smith; that the balance of the property, (stating the amount) in the possession of defendant, is now in Worth county; that he apprehends said property will be removed beyond the limits of the State, and his rights as guardian, and the rights of his ward, will be impaired unless a remedy be given him against their removal, and prays for a writ of quia timet against Frances Holliday.

Which bill was demurred to for want of equity and jurisdiction; and because the bill does not allege the negroes were in Worth county, at the time of the filing of the bill, or are now, and that the oath verifying, the bill was not sufficient, because complainant failed to give bond, &c.

Complainant swore to the facts in the bill, to the best of his knowledge and belief. And after the decision of the Court sustaining said demurrer, complainant moved to amend his bill by alleging the residence of defendant to be in the county of Worth, and that the negroes were there at the time of filing said bill, which the Court permitted and defendant's counsel excepted and assigned error.

STROZIER & SMITH, for plaintiff in error.

CLARKE & LIPPETT, for defendant in error.

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

The Judgment of the Court below must be reversed, on the ground that the affidavit is not sufficient in law, to entitle the complainant to the strong remedy he prays for. The bill alleges that the complainant entertains serious apprehensions that the property will be removed beyond the limits of the State, aud that his rights as guardian and the rights of his ward, will be impaired unless a remedy be afforded for the preservation thereof. He deposes that the facts contained in the bill are true to the best of his knowledge and belief.

McColgan vs. McKay.

The affidavit required by the statute, Cobb 527, is positive. An affidavit to the best of the knowledge and belief of the complainant is not the affidavit required by the act. Of some of the facts necessary to be positively sworn to, he may have no knowledge, and may have no reasons for believing them true.

The bill was amended in the Court below so as to remedy objections respecting the jurisdiction of the Court and the locus of the property.

The facts alleged in the bill are sufficient to entitle the complainant to the remedy he asks, if the affidavit were sufficient; but that being insufficient, we reverse the judgment of the Court below, with instructions, however, to allow the complainant, if he desires it, to make an affidavit in conformity with the statute, and thereupon to grant to complainant the relief to which he may be entitled under the act.

Judgment reversed.

NEIL MCCOLGAN, plaintiff in error, vs. NEIL MCKAY, defendant in error.

It is almost a matter of course, to let in new evidence on a point, to save a nonsuit.

Assumpsit, from Sumter county. Tried before Judge ALLEN, March Term, 1858.

Plaintiff, McColgan, sued defendant McKay on the following bill of particulars.

Neil McKay to Neil McColgan,

Dr.

To balance on settlement of partnership between you and me found, and acknowledge due me,

$520,00.