Molyneaux v. Wcollier

• Decision Date: 31 July 1853
• Docket Number: No. 60.,60.
• Citation: 13 Ga. 406
• Parties: E. Molyneaux et al., plaintiffs in error. vs. Geo. W.Collier, defendant in error.
• Court: Georgia Supreme Court

13 Ga. 406

E. Molyneaux et al., plaintiffs in error. vs. Geo. W.Collier, defendant in error.

No. 60.

Supreme Court of the State of Georgia

JULY term, 1853.

[COPYRIGHT MATERIAL OMITTED.]

In Equity, from Baker Superior Court. Tried before Judge Perkins, April Term, 1853.

This was a bill filed by George W. Collier, against Edward Molyneaux and others. The bill charges, that in 1838, George W. Collier, James M. Bracewell and Edward St. George, were engaged as partners in the mercantile business, in the town of Hawkinsville, under the firm, name and style of Collier & Bracewell. Collier & Bracewell executed their note to John Rawls, for $9360, which note was endorsed by Bawls to Edward Molyneaux, who afterwards sued and obtained a judgment thereon, in Pulaski Superior Court, from which judgment Collier & Bracewell appealed, giving Edward St. George as security on the appeal bond. In 1840, a judgment was recovered against the parties upon the appeal, from which a fi. fa. was issued. The firm of Collier & Bracewell became insolvent. The fi. fa. was transferred by Molyneaux to Rawls. In 1842, Rawls and Collier entered into an agreement, by which Collier, who was in embarrassed and failing circumstances, was to appropriate the proceeds of his yearly labor to the payment of one-third part of said judgment, and Rawls was to release him from the payment of the balance. And in pursuance of said agreement, Collier applied said proceeds until the one-third part of the fi. fa. was fully paid off and discharged. That St. George had paid off his one-third part of the fi. fa. and that Bracewell, at the time of the agreement, was in possession of property sufficient to pay off the balance of the fi. fa., and that Rawls neglected to have the fi. fa. levied upon the property of Bracewell, although pointed out by Collier, the complainant in the bill.

The bill charges, that after the death of Rawls, to wit: in 1844, Edward Taylor and Caroline Rawls, administrators of John Rawls, deceased, for the purpose of evading the contract between complainant and Rawls, procured Molyneaux to transfer the fi. fa. to the Merchant's Bank of Macon.

That, in violation of said agreement, the Merchants' Bankof Macon had caused the fi. fa. to be levied upon certain negroes, the property of complainant, in the County of Lee, and certain lands belonging to complainant, and lying in the County of Baker, said levy made in June, 1845; which property was claimed by one Jonathan Davis, which claims were returned to the Superior Courts of Baker and Pulaski Counties, and which were subsequently withdrawn; that the fi. fa. was subsequently placed in the hands of the Sheriff of Muscogee County, and by him levied upon a negro woman belonging to complainant.

The bill prayed that the fi. fa. might be perpetually enjoined, as to complainant.

To this bill the defendants filed their answers, and the cause was set down for trial.

At the April Term, 1852, of Baker Superior Court, counsel for complainant presented to counsel for defendant, an amendment to the bill, upon which a waiver of copy was served, which amendment charged, that the fi. fa. had been fully paid off and discharged, and set forth a receipt to that effect from John Rawls.

At the April Term, 1853, the cause came on to be tried, when counsel for defendants moved the Court to dismiss the amendment. The Court overruled the motion, and counsel for defendants excepted.

On the trial, complainants offered in evidence a copy of the fi. fa. first making affidavit, that the "original was levied upon land in Baker County, and returned, with the claim papers, to the Superior Court of that County, and that he supposed it was in that office, but that it could not be found." To which showing, and accounting for the loss of the original fi. fa. counsel for defendants objected. The Court overruled the objection, and defendants excepted.

Defendants proposed to read in evidence the depositions of Augustus H. Hansell, who testified, "that George W. Collier did, since the death of John Rawls, offer to settle the fi. fa. by giving a settlement of land in Baker County, in pay-ment thereof, which settlement of land, he (Collier) said was worth fully the amount due on said fi. fa., " etc.

To which testimony counsel for complainant objected. The Court sustained the objection, and defendants excepted.

Defendants then proposed to read in evidence the depositions of Edward St. George, to prove the admissions of Collier as to his liability for the whole of said fi. fa., as also the solvency of Collier. To the introduction of which testimony counsel for complainants objected, and defendants excepted.

Counsel for complainants proposed to read in evidence a receipt given by Rawls, in 1841, to Bracewell and St. George, for various amounts, to be credited upon the fi. fa., and which receipt was set forth in the amendment to the bill. Counsel for defendants objected to the evidence. The Court overruled the objection, and counsel for defendants excepted.

Complainant then proposed to show the insolvency of Collier in 1841 and 1842, from rumor and general reputation, to which testimony counsel for defendants objected. The Court overruled the objection, and counsel for defendants excepted.

Among other things, the Court charged the Jury, "That the contract of release, alleged in the bill, by which Collier was to apply the proceeds of his yearly labor in discharge of one-third part of the fi. fa. need not be strictly proved, but would be substantially proved by proof that one-third part of the debt had been paid in any other way or manner, at Collier's instance, and that it is true, as a legal principle, that an allegation of a positive contract is not supported by proof of a contract in the alternative."

The Court farther charged the Jury, "That it ought to be averred in the bill, and proved to the Jury, that Collier was either insolvent or embarrassed, so as to jeopardize the collection of the debt, in order for the agreement to release Collier to have bound Rawls."

Counsel for defendants requested the Court to charge the Jury, "That a judgment debt of record, cannot be discharged or released by an agreement vesting in parol, or a verbal agreement to pay a less amount than the whole debt, " which chargethe Court refused to give, but charged the contrary to be the law, provided the "agreement was made upon a good and sufficient consideration."

Counsel for defendant requested the Court to charge the Jury, "That the great length of time which has elapsed since the contract is alleged to have taken place, is a circumstance which the Jury is authorized to consider, in order to negative the idea of such a contract, and that if they believed, from the evidence, that St. George and Collier were solvent at the time of the contract of release, that this was a circumstance going to negative the existence of such an agreement." The Court refused so to charge. To all which charges and refusals to charge counsel for defendants excepted. The Jury decreed in favor of the complainant. Whereupon counsel for defendants moved the Court for a new trial, upon several grounds, predicated upon the exceptions taken in the progress of the trial of the cause.

The Court refused to grant a new trial, and counsel for defendants excepted, and upon these several exceptions error has been assigned.

Bailey, for plaintiff in error.

Strozier & Worrill, for defendants.

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

This bill was returned to the June Term, 1850. At the December Term following, the answers were in, and the replications filed. At that time, therefore, it was ready for a hearing, and ought to have been set down for trial. After this, to wit: in April, 1852, we have the first notice of the amendment. The only notice then given of it is a waiver of a copy, endorsed by the counsel for the defendants. We infer that it was, without farther solemnity at that time, filed among the papers as an authorized amendment to the bill. The record discloses no application to the Court for leave to amend—noshowing upon which to found such application—no consent of parties that the amendment be made, and no order authorizing it. Thus situated, the cause was called for trial in 1853, and the amendment appearing to be a part of the pleadings, counsel for the defendants moved to strike it out, upon the ground that it was irregularly in. This motion being refused, exception was taken.

The rules of Chancery practice condemn this procedure in case of a bill not sworn to—much more do they condemn it in case of a sworn bill, as was this. This amendment makes a material addition to the complainant's case. It charges that the execution is paid off, and exhibits a receipt for a large amount, going to show that fact. The original bill only charged that the complainant's one-third had been paid in pursuance of the agreement between himself and John Rawls, and prayed a perpetual injunction as to him; but the amendment goes for a decree of satisfaction and injunction as to the whole judgment. It was not, therefore, a formal, but it was a vital amendment. When a cause is set down for a hearing, amendments are not matters of right, but are addressed to the sound discretion of the Court, upon special cause shown. It is as difficult to amend a sworn bill as an answer. To either, amendments are allowed with the utmost caution, and for many good reasons, to be found in some of the cases to which I shall presently refer. Here no cause was shown—no leave asked—no judgment or order passed, and no verification of the amendment. It would seem that the amendment was not passed upon by the Court, but put in by counsel as a matter of course. All of which was without precedent, and flagrantly irregular. The record does not show that this amendment was ever answered, or that it was ever even taken as confessed, and yet a decree was had on the bill as amended. Such proceedings reproach our Courts of Chancery, and...