69 Ga. 661 | Ga. | 1882
Neither will the writ of error be dismissed because the record does not show that the costs in the court below have been paid. If the costs are not paid, the defendant in error may cause execution to issue, and proceed at once to make it in the court below. 6 Ga., 587. As the giving bond, or payment of costs, was not a condition precedent, which the record must show before we could take jurisdiction of the case, much less would the failure to file a pauper affidavit, whether perfect or not, operate to dismiss the writ from this court. Where, however, the pauper affidavit is defective, as in this case, the counsel for plaintiff in error is liable for the costs here taxed. Motion overruled.-
To this petition defendant filed her plea of general issue; and further, that the note and mortgage were given to C. Toler, the payee, as security for a debt of her husband, George C. Perkins, and that the same is, therefore, illegal and void; that her husband owed said Toler for a mule, and this note and mortgage were given by her to secure said debt of her husband’s. To this plea plaintiff below demurred, on the ground that it failed to set forth the fact that the plaintiff took the note sued on with notice of the fact that the same was given as a security for the debt of her husband. í’he court sustained the demurrer and struck the plea, and plaintiff in error excepted. The question made by the record is, can a married woman set up this defence to a holder of a negotiable security, who buys it bona fide for value, without notice and before due? While the wife may contract, she cannot bind her separate estate by any contract of suretyship, nor by any assumption of the debts of her husband. But how is she affected as to such a contract when it passes into the hands of a bona fide holder without notice ? What are the rights of a bona fide holder of negotiable securities ? For her rights of defence must also be construed in reference to his. A bona fide holder of such a paper before due, for value, and without notice, is protected from any defences set up by the maker, acceptor, or endorser, except non est factum, gambling, or immoral and illegal consideration, or fraud in the procurement of the contract. It is not claimed that this is a gambling contract; it is not claimed that it is an
The case of Johnson Brothers & Co. vs. McConnell et al., 65 Ga., 130, relied upon by plaintiff in error, was one in which the contract was not only illegal, but also immoral, because in violation of a penal statute.
The presumption of law is, that in this case the defendant in error took this note and mortgage for value before due and without notice; 61 Ga., 208; 60 Ib., 90; and therefore, to meet this presumption, the defendant, in setting up her defence that she was not liable because she had made this contract contrary to law, must both aver and prove that this defendant in error either traded for this note after due, or else that he took it with notice that the consideration was illegal.
When a married woman gives her individual note, the presumption of law is that she gave it on her own contract and for value, to charge her separate property; and when she makes such a contract apart and independent of her husband, and one takes it bona fide and with
In our judgment the court did not err in sustaining the demurrer.
Judgment affirmed.