11 Ga. 180 | Ga. | 1852
jBy the Court.
delivering the opinion
The presiding Judge dismissed the bill at the hearing, upon the ground that there was no evidence to show that any of the defendants had notice of the complainant’s lien. Upon this ruling of the Court, the complainant excepted, and the bill of exceptions makes two points:
First. It is claimed, that if it be true, that there is no evidence of notice, yet, in Georgia, the Chancellor has no power to dismiss the case.
Second. That there was evidence of notice sufficient to take the cause to the Jury.
The first claim assumes, that in this State, the powers of the Judge and of the Jury, in causes in Equity, are joint. This assumption goes the length of saying that the Judge can render no judgment on the law, without the concurrence of the Jury; that in this case, for example, the Judge could not order the dismissal of the bill, upon the ground that the complainant had introduced no evidence to a fact material in law to be proved, without a decree of the Jury, finding, that for that reason the bill should be dismissed.
And it is upon this process of reasoning alone, that appeals were sustained in Equity causes; for there is no larv which authorizes them, since the Act of 1797, until the Act of 1843. The right of appeal, given by the Act of 1799, has been usually conceded — and it seems to me, necessarily conceded— to refer to cases tried at Law. These remarks about appeals being parenthetical, I proceed to inquire — having traced the trial by Jury, in Equity, to the Act of ’97 — what, according to that Act, are the relative powers of the Judge and the Jury. The Act of 1792, and also the Act of .1797, provides, that “ the Superior Courts shall be competent to sustain a suit, by bill and proceeding therein, until the setting down of the cause for hearing; such Superior Courts shall then submit the merits of the suit, with the evidence thereon, which, in all cases, shall be given viva voce, (or otherwise, within the rules of the Common Law;) and all matters respecting the same, to a special Jury, who-shall give their verdict on the same; but if either party shall be dissatisfied with such verdict, an appeal may be entered in the Clerk’s office within ten days after trial, when a hearing of such cause shall again be had before another special Jury, and such trial shall be final and conclusive.” Watkins’ Dig. 480, 621, 622. The Act of 1799, so far as it relates to the action in a cause before it is set down for a hearing, although somewhat variant in its verbiage,, is in substance, the same
If the Court shall sustain a suit, that is, do all that is necessary to be done (pass such orders and pronounce such judgments or decrees) to conduct the suit forward to the trial, it is not until the suit is ready for trial, that any mention is made of a Jury; it is at that point, and not anterior to that point, that the Jury intervenes. Before that time, without question, the Court is left to sustain the jurisdiction without the Jury. It is when the cause is set down for trial, that the Statute invokes the cooperation of the Jury. What then, at the trial, are the powers of the Jury? As the Act of’99 is silent upon the matter of the Jury altogether, we are remitted to the Act of ’97, for the answer. By that Act, when the cause is set down for trial, it is made the duty of the Court to submit the merits of the suit, with the evidence thereon, and all matters respecting the same, to a special Jury, who shall give their verdict on the same. The Jury are brought in for the purpose of the trial. According to the Act of ’97, it is where the cause is set down for a hearing, that the caséis to be submitted. In the same connection the Act of’99 uses the word trial. I remark, first, that the powers of the Jury are limited to the determination of the facts; because, the Statute, in the use of the word trial, means the trial of the facts. I do not mean to say that when a case is set doum for a hearing, in
The matter submitted to the Jury, is the merits of the suit. The merits of a suit usually mean the rights of the parties, on the issues made in the pleadings, as distinguished from technical grounds of exceptions to the pleadings, or merely legal grounds of objection to the plaintiff’s case, or defendants’ defence. Here, merits is used to designate the rights of the parties, growing out of the issues as they are made in the pleadings, so far as they depend upon the facts to be proven. These rights or merits are to be submitted to the Jury. They are to determine those rights, by determining upon the evidence. This is clear from the further requirement of the Statute, that with the merits, the evidence thereon, is also to be submitted to the Jury. The evidence thereon, is the evidence on or in relation to the merits. There is no other sensible construction but this. Legal merits cannot be contemplated; because, questions of Law may grow out of, but are not determinable by the production of evidence. The law's live in the Statute book — in recorded opinions — in the works of venerated sages, and in the mind of living authorized administrators. Merits of fact are determinable by the production of evidence. The Act further requires that all matters respecting the same, shall be submitted to the Jury. This plenary clause is restricted in its generality of meaning, by its antecedents. It does not mean all matters respecting the suit, but all matters respecting the merits and the evidence. It is upon the merits referred to, as the same, upon which the Act finally requires the Jury to render their verdict. - Here then is
Richard Byars was also a purchaser of some of these lands. Joel Byars testifies, that he acted as agent for Richard, in effecting the purchase. He says that William Byars had sold to Richard, a tract called the King Place, which William wanted to get back; and proposed to the witness, as the agent of Richard, to swap a part of the land, which the complainant had sold to James Byars, (the certificates to which, as before stated, had been transferred to William by James) for the King Place; that he, witness, and William Byars, went to James Byars’, and William told James that he was going to let witness have the land for Richard; and Polly (James Byars’ wife) said, “ you had better let Mounce, (the complainant) have his land back, for she knew that James would never be able to pay for it; and then they all got very mad, and she got mad ; and after some farther conversation, James said there was no chance for him to give Mounce the land back, for Mounce had traded oft some of the notes. James said that Mounce never had and never would lose any thing by him. We then swapped land. I, as agent for Richard Byars, swapped the King Place, and gave- fifty dollars to boot for the part Mounce had sold to James Byars; and for a four acre lot that James owned before he made the purchase of Mounce.” The same witness testifies that the deed for these lands was made to him, (as agent for Richard Byars) after this conversation with James Byars. By this testimony, Richard bought these lands of James Byars — he made the exchange for William’s benefit; but it seemed to be conceded between the parties, that James had the right of disposing of the Mounce lands. This testimony clearly charges Joel Byars, the pgent of Richard Byars, the purchaser, with notice that James Byars had not paid the complainant for the lands. Notice to the agent is constructive notice to the principal. Com. Dig. Chancery, 4 c. 5 and 6. 2 Fonbl. Eq. b. 2, ch. 6, §4. 2 Eden's R. 224, 228.
Upon this ground, let the judgment be reversed.