Ponder v. Cox

• Decision Date: 31 May 1859
• Citation: 28 Ga. 305
• Parties: PONDER. vs. COX.
• Court: Georgia Supreme Court

28 Ga. 305

PONDER. vs. COX.

Supreme Court of the State of Georgia

MAY TERM, 1859.

Equity will not drive a party to common law, when by doing so his rights would be delayed, if not jeopardized.

In equity, in Thomas Superior Court. Decision by Judge Love, January, 1859.

This bill was filed by Carey S. Cox against Ephraim G. Ponder, to enjoin the collection of a judgment at law, obtained against complainant. The bill alleges that complainant, by his agent, Dyson, bought a negro man by the name of Price, or Giles Price, a blacksmith, from defendant, for $1800; that one of the notes given for the purchase-money, amounting to $1800, was transferred toone William Ponder, a brother of defendant, before it fell due, and that judgment had been obtained upon said note, and afterwards said judgment transferred back by William Ponder to Ephraim G. Ponder, the defendant, who is the owner and holder thereof, nnd that said transfers were made by defendant with a view of preventing complainant from making a defence to said note, the consideration thereof having failed in this, that the negro thus purchased by defendant, and the right and title of which defendant warranted, is not a slave, but is a free person of color.

The injunction was granted, and afterwards, upon a motion to dissolve said injunction, and to dismiss complainant's bill for want of equity, the court refused the motion, but held up the injunction and retained the bill; to which decision Ponder excepted, and upon a writ of error to the supreme court, that court reversed the judgment of the court below, holding that complainant had an adequate remedy at law against Ponder, upon the covenant of title in the bill of sale; but granted leave to complainant to amend his bill, by alleging the insolvency of Ponder, or any other fact that would raise an equity, and show that the remedy at law would be adequate. See this case fully reported in 26 Geo. Rep.

The case being thus remanded to the court below, complainant then moved to amend the bill, alleging, amongst other things, that defendant had recently executed a post nuptial settlement, by which he had conveyed to a trustee, for the sole and separate use of his wife, the whole of his estate, real and personal, consisting of lands, negroes, &c., and that he had no visible property upon which an execution could be levied, even if complainant should recover a judgment at law upon the bread) of warranty of title; that defendant had removed from the county of Thomas to the county of Fulton, and that if he had property now that could be reached by garnishmentor execution, it would be easy for him to remove said property, or to...