Camp v. Bancroft

• Decision Date: 31 August 1858
• Citation: Camp v. Bancroft, 26 Ga. 393 (Ga. 1858)
• Court: Georgia Supreme Court
• Parties: N. F. Camp, plaintiff in error. vs. Bancroft, Betts & Marshall, defendants in error.

26 Ga. 393

N. F. Camp, plaintiff in error. vs. Bancroft, Betts & Marshall, defendants in error.

Supreme Court of the State of Georgia

AUGUST TERM, 1858.

Illegality, in Butts Superior Court.Decision by Judge Cabaniss, at June adjourned Term, 1857.

Bancroft, Betts & Marshall foreclosed a mortgage which they held against Nathan F. Camp, and issued a fi. fa. 6thDecember, 1856, under which the Sheriff levied upon one of the negroes mentioned in said mortgage.

Camp filed his affidavit of illegality, stating that said fi. fa. was proceeding against him illegally, because said mortgage had been restrained by an injunction issued out of Chanceryupon a bill filed by affiant, and said mortgage had been foreclosed and fi. fa. issued since the suing out and service of said bill and injunction, and which are yet pending in Butts Superior Court.

Upon the hearing of the case, the counsel for Bancroft & Co. moved to dismiss the affidavit of illegality.

Counsel for Camp objected to said motion, and moved to amend his original bill in equity, upon which and the proceedings therein had, he had predicted his grounds of illegality.The Court refused the motion to amend, dismissed the affidavit of illegality, and ordered the mortgage fi. fa. to proceed.To which order counsel for Camp excepted.

D. J. Bailey, for plaintiff in error.

J. J. Floyd, contra.

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

The only ground of illegality alleged in the affidavit is, that the mortgage on which the...