Mcclure v. Msmith

• Decision Date: 31 January 1876
• Citation: 56 Ga. 440
• Parties: George W. McClure et al., plaintiffs in error. v. James M.Smith, governor, defendant in error.
• Court: Georgia Supreme Court

56 Ga. 440

George W. McClure et al., plaintiffs in error. v. James M.Smith, governor, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1876.)

Thomas F. Greer, for plaintiffs in error.

C. D. Phillips, solicitor general, for the state.

Bleckley, Judge.

1. The complaint is that a plea was stricken. The contents of the plea are mis-recited in the bill of exceptions, and it was upon the mis-recitals that counsel for plaintiffs in error seemed to rely, chiefly, in his argument before this court. The sole authority to which he referred was 6 Georgia Reports, 202, which relates to incomplete bonds, or bonds not finally and unconditionally delivered. That authority might be pertinent if the plea in the present case was what the bill of exceptions represents it to be; but it is not. The plea, as set out at full length in the transcript of the record, ought to govern and will govern, and it alone will be looked to. The copy there found is to be deemed complete and correct. It is not the office of the bill of exceptions to give either a copy or a summary of the pleadings, and when it professes to do either, it is subject to be checked, or even wholly contradicted, by the record: 44 Georgia Reports, 620.

2. The bond shows on its face that an arrest had been made under a bench warrant for the offense of adultery, and that the obligation of the bail (plaintiffs in error) was that their principal should appear at the court and not depart without leave of the court. On scire facias brought to enforce *the bond, they pleaded, not that it was incomplete, or that it had never been delivered, or that it was not their act or deed, or that the condition had been performed, but that they signed it with the understanding that it was to be void if the principal appeared next day; that he did so appear and desired them not to lift the bond but to continue to stand, promising that he would get other signatures to it; that they agreed the bond might remain theirs provided this promise were complied with; that the sheriff, who then had the bond in his possession, said he had authority to sign the names of other good sureties, (specifying them) and would do so, and that plaintiffs in error might go home and all should be right; and that, relying upon these promises, and fully believing that the sheriff would see them complied with before returning the bond into court, they, the plaintiffs in error, agreed that the bond might remain theirs. This is the...