Baker v. Magrath

• Decision Date: 03 February 1899
• Parties: BAKER v. MAGRATH.
• Court: Georgia Supreme Court

32 S.E. 370

106 Ga. 419

BAKER v. MAGRATH.

Supreme Court of Georgia

February 3, 1899

Syllabus by the Court.

1. A commissioner of deeds for the state of Georgia residing in another state has authority to administer there a pauper affidavit required of plaintiff in error to relieve him from payment of costs in this court.

2. In the trial of a suit upon unconditional promissory notes given by defendant to plaintiff, it is not error for the court to direct a verdict for the plaintiff, when there is no testimony to sustain the plea relied on by defendant.

Error from city court of Atlanta; H. M. Reid, Judge.

Suit by J. W. Magrath against W. A. Baker. Verdict directed for plaintiff. Defendant brings error. Affirmed.

Burton Smith and C. B. Reynolds, for plaintiff in error.

W. D Ellis, Jr., for defendant in error.

LEWIS J.

This was a suit by J. Walter Magrath against W. A. Baker for $4,000, besides interest, alleged to be due on two promissory notes given by defendant to plaintiff for the principal amount of $2,000 each. Defendant filed a plea, denying his indebtedness as alleged; admitting that the notes sued upon were signed as stated in the petition; but alleged that only a part of said sum was received by him, not as a loan, but to be used by defendant in the speculative purchase of cotton for the joint benefit of plaintiff and defendant; that the notes were given for an illegal consideration, are invalid and no recovery can be had thereon. At the conclusion of the evidence, the court directed a verdict for the plaintiff, to which direction the defendant below excepted, and now assigns it as error.

1. When this case was called for hearing, our attention was called to the fact that the pauper affidavit executed by the plaintiff in error, for the purpose of relieving himself from the payment of costs in this court, was sworn to and signed before a commissioner of deeds for the state of Georgia, in the state of New York, and the question is presented whether or not such an official has authority to administer this oath. Under the act of 1829, as embodied in Cobb, Dig. pp 173, 174, such a commissioner unquestionably had authority to administer this oath; and it was accordingly decided in Sugar v. Sackett, 13 Ga. 462, that "a commissioner for this state, in New York, duly appointed, is empowered by our law to administer an oath in any case in which a magistrate, resident in our state, may administer it." There was evidently an effort upon the part of the codifiers to embody in the present Code the provisions of this act of 1829. See Pol. Code, § 120, which, in its present shape, first appeared in the Code of 1863, and has been embodied in every subsequent Code since that date. That section does not contain specifically the provisions of section 2 of the act of 1829, giving such a commissioner of this state authority to administer an oath or affirmation to any person who shall be willing and desirous of making the same, but we think there was an evident intention to embody in the Code the provisions of that section, as well as the one just preceding, in a condensed from...