23 Ga. 368 | Ga. | 1857
By the Court. —
delivering the opinion.
We think the weight of evidence in this case, strongly and decidedly against the verdict of the jury in the Justices* Court, and the judgment of the Superior Court, affirming that finding.
Still, we might not feel it to be our duty to interfere, were we not persuaded that the law of the case was misapprehended. It would seem that in both Courts, it was supposed that, if A. buys property and makes a gift of a portion of it to B., and B. unites with A. in giving a note to C., under an understanding, that B. is the security only of A., that this makes B. a principal with A. to the original contract. But this, we apprehend, is not the law. B. was no party with A. in the purchase, neither did he participate in the consideration, as coming from C., and the subsequent gift from A., could not constitute B. a principal.
And with the law thus expounded, all the testimony harmonizes and goes to show, that James Fraser was security only to Craven Fraser. The goods were charged in the sale bill, to Craven Fraser. By the terms of the sale, security was to be given on all purchases amounting to more than five dollars, and yet, Craven and James Fraser’s were the only two names to the note. Did not the payee believe that James Fraser was security for Craven ?
Judgment reversed.