80 Ga. 27 | Ga. | 1888
George O. Dawson died in 1864. His brother, L. W. Dawson, was appointed administrator on his estate, but soon thereafter died, and Edward W. Seabrook was appointed administrator de bonis non upon the estate. Sea-brook discovered that there was a will of George O. Dawson, and his letters of administration were called in, and he was appointed administrator de bonis non with the will annexed of George O. Dawson. Upon his first bond as administrator de bonis non, he gave as sureties Messrs. Strain, Davis, Poullain and Cody; and upon his second bond he gave the same sureties. Strain, one of these sure
The cases were consolidated, and the defendants pleaded (1) the general issue; (2) release of the defendants from liability on the bonds by reason of Brown’s paying out to Strain’s heirs assets of Strain’s estate; (3) an equitable bar to the plaintiff’s right of action on account of laches in not sooner bringing his suit; (4) that Poullain was released from liability on the second bond on account of plaintiff’s failing to sue with him the administratrix of his co-surety. These pleas, except the general issue, were excepted to, and the court sustained the exceptions and ruled them out.
As to the plea of an equitable bar, no case has been shown us where a court of equity will stop a court of law in a plain suit upon a bond not barred by the statute of limitations. If the plaintiff had been in a court of equity this doctrine of an equitable bar might have been applicable ; but in -this case, twenty years not having elapsed from the breach of the bond to the bringing of the suit, Brown was rightfully in a court of law, and we know of no right of a court of equity to interpose a bar to the bringing of his suit. No authorities have been shown us, and we have been unable to find any, in support of this plea.
Poullain’s plea that he was released in the suit on the second bond by the failure of the plaintiff to sue with him Mrs. Davis, the administratrix of his co-surety, was not a good plea. The bond was joint and several, and the plaintiff had a right to sue Poullain either with or without Mrs. Davis.
In equity cases, it is perfectly competent for the legislature to prescribe the rule which they did prescribe in the act of October 16th, 1885, because the right of trial by jury in equity cases is given by statute, and in such cases is not a constitutional right; but in a case at law, it is the constitutional right of every citizen to have a trial by jury in a proper case made. It is his right to call in a jury to say, from evidence submitted to them, whether he is indebted or not, and the amount of such indebtedness. We feel constrained to give this construction to the act of October 16th, 1885, while adhering to the decision of this court as to equity cases. As to exceptions of law, it is also constitutional, but the exceptions of fact are questions for the jury, and have always been in England and in this country; and the legislature has no power to provide otherwise until the constitution be altered. Upon this ground, therefore, we reverse the judgment of the court below; holding that the court erred in not allowing the defendants (the plaintiffs in error here) to go to the jury on these exceptions of fact, and have the jury determine what their liabilities were, ‘if any, under the evidence in the case.
Judgment reversed.