Dennis v. Green

20 Ga. 386 | Ga. | 1856

By the Court.

Benning, J.

delivering the opinion.

[1.] The motion for the new trial in this case, was put upon these grounds:

That the verdict was contrary to the evidence and to the charge of the Court, and to the weight of the evidence.

The Court below granted the motion and puts its decision on the ground that the verdict was contrary to the charge of the Court, thereby leaving room for the inference that it considered the other grounds untenable.

If this was the opinion of the Court in respect to those grounds, it is one with which we agree. The whole evidence consisted of the fi. fas. the transfers of the fi. fas. and the answer. The answer denied every equity giving allegation in the bill'; and the fi. fas. and their transfers were not contradictory of any thing in the answer.

The whole question, then, whether the motion should have been granted or not, is reduced to this: was the charge of the Court right ? for the facts of the case are such that the verdict, is manifestly against the charge of the Court.

And we think that the charge of the Court was not right It can hardly be said that the doctrine of the charge was the -doctrine of the English Court of Chancery, at the time when the law of England was planted in Georgia. But whether that be so or not, we think that the doctrine is in conflict with law which the State has since made for itself. The words of the Judiciary Act of 1799 are as follows: “and a,11 the .property of the party against whom such verdict shall be entered, shall be bound from the signing of the first judgment.”

The Act of 1810, “ to point out a regular and definitive rule for the priority of judgments,” declares that “ all the ■¡property belonging to the defendant .or defendants, shall -be ■bound and subject to the discharge of' the first judgment.” (Cobb's Dig. 494, 495.)

If all of the defendant’s property is bound, that which he holds as partner, must be bound as much as that which he holds otherwise than as partner. The words have that extent of meaning, and there is nothing in -any Statute to restrict them. On the contrary, there are other Statutes which countenance this large import of the words, as the Statute of 1818, “pointing out the mode of collecting a certain description of debts therein mentioned,” and that of 1820, “ to regálate the mode of prosecuting actions against contractor .and co-partners, in certain cases.” (Cobb’s Dig. 483, 484.)

We think, therefore, that all of the property of a defend•ant in judgment, is equally bound by the judgment; and .this, although some of the property may be such as he holds .as member of a partnership which, itself, needs all of its property for the payment of its own debts.

If we are right in this, the charge of the Court was wrong; and if that was wrong, the verdict’s being contrary to it, was .no objection to the verdict.

We are constrained, therefore, to reverse the judgment ,granting the new trial.