5 Ga. 239 | Ga. | 1848
By the Court.
delivering the opinion.
This objection to the declaration was taken at the trial term, and if good at any time, certainly was not good in arrest of judgment. It is contended, that the plaintiff should have alleged, the note was made payable to the Bank of Columbus, and given a correct description of it, inasmuch as Davis, the Cashier, was only the agent of the Bank. By the 14th Common Law rule of practice, all matters appearing on the face of the declaration, or process, that would not be good 'in arrest of judgment,, shall be taken advantage of at the first term of the Court. Hotchkiss, 948. In any event, the declaration would have been amendable, and the objection would not have been good, in arrest of judgment, and was properly overruled by the Court, at the trial term.
In regard to the third assignment of error, perhaps it would bave been more regular to have tendered the deed of assignment, with the notes, to the jury; but as the assignment was subsequently proved, the plaintiffs’ title was made out by different links, in his chain of testimony, and the Court did not err in permitting bim to do so. The next error assigned upon the record, is the admission of the Bank books in evidence on the part of the plaintiff.
It is unnecessary to consider the exception to the admissibility of the copy-deed of assignment in evidence, as the record shews, that afterwards, the plaintiff introduced the original deed in evidence, after having duly proved its execution, on the day it bore date, and that the assignee took the control of the assets of the Bank. The deed of assignment is dated on the 10th of June, 1843, and the judgment of forfeiture was rendered against the Bank on the 13ih day of the same month.
The Court charged the jury that the validity of the deed of assignment could not be inquired into, to which the defendants excepted.
The charge of the Court must be understood, in reference to the facts before it. The defendants were indebted to the Bank, for money advanced to them, for which these notes were given. The record does not show it was necessary for their defence, that they should inquire into the validity of the plaintiff’s title, as was ruled in Field vs. Thornton, and in that view of the case, the Court did not err, in charging Jury, that the validity of the assignment could not be inquired into by the defendants. The whole record exhibits an effort, on the part of the defendants, to get clear of an honest debt, by the misfortunes of their creditors, rather than the justice of their defence.
Let the judgment of the Court below be affirmed.