Shaver v. Mclendon

• Decision Date: 30 June 1858
• Citation: 26 Ga. 228
• Parties: William B. Shaver, plaintiff in error. vs. Mack W. McLendon, defendant in error.
• Court: Georgia Supreme Court

26 Ga. 228

William B. Shaver, plaintiff in error. vs. Mack W. McLendon, defendant in error.

Supreme Court of the State of Georgia

JUNE TERM, 1858.

Suit on bond, from Marion. Tried before Judge Worrill, March Term, 1858.

This was an action of debt on a bond. The plaintiff, Wm. B. Shaver, had obtained execution in a Justice's Court against A. J. Simmons, James M. Adams and James M. Davis, and had it levied upon a bale of cotton. A claim was interposed by one Sidney B. Simmons to said cotton, and through mistake, the bond for the forthcoming of the same, was made payable to James B. Shaver, when it was the intention to make it payable to the plaintiff in fi. fa. The claim was tried, and the cotton found subject to the fi. fa.; and the sale again advertised, when the property was not forthcoming to satisfy the demand of the plaintiff.

The plaintiff then brought suit on the bond, and offered on the trial in evidence, the bond made payable as before stated; and further proposed to prove, that the same was made payable to said James B. Shaver by mistake; and that said James B. had no execution in said Court; and also offered said fi. fa. in favor of plaintiff, together with the claim; the verdict of the jury finding the property subject to the fi. fa.; also the judgment of the Court on the verdict, and also to prove by the constable levying the fi. fa., that he advertised said property, and that the same was not forthcoming, and also the value of said property levied on; to all of which testimony the defendant's counsel objected, upon the ground that it was an attempt to correct said bond, and if the plaintiff had any remedy, it was in a Court of Equity.

Which objection the Court sustained, and on motion dis-missed plaintiff\'s action; whereupon, plaintiff by his counsel excepted, and assigns the same as error.

Blanford & Crawford, for plaintiff in error.

Davis & Hudson, for defendant in error.

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

It is admitted on all hands, that the plaintiff might recover on this bond and his offered proof, in equity. But what is there to prevent him from doing so in like manner at law?

I think there is nothing. "Whenever" "a plaintiff or complainant shall conceive, that he, she or they, can establish his, her or their claim, without resorting to the conscience of the defendant, it shall and may be lawful for every such plaintiff or complainant, to institute his, her or their action upon the common law side of the Court, and shall not be held to proceed with the forms of equity; any law or usage to the contrary notwithstanding." Cobb Dig. 464.

This, as it seems to me, is an authority to the plaintiff to proceed at law in this case. I, therefore, think that the Court erred in not admitting the evidence, to the mistake.

Judgment reversed.

Lumpkin, J., concurring.

McDonald, J., dissenting.

I think the decision of the Court below ought to be sustained. I know of no precedent or authority for going to the extent proposed here. The suit is on a bond. The obligor's name is wrong, and it is proposed to make that right by averment and proof. The bond was given on filing a claim. The condition of the bond recites, that James A. Davis was the plaintiff in the fi. fa., and that Albertus J. Simmons and James W. Adams were security. The fi. fa. tosupport the recital, is in favor of William B. Shaver, as plaintiff, and against A. J. Simmons, James M. Adams and James W. Davis, defendants.

Perhaps, in States which have no Courts of Chancery, this kind of proceeding might be allowed, but certainly on no legal principle. The case of Isaac...