36 Ga. 404 | Ga. | 1867
1. The return of the sheriff in this case is not very formal, but the legal effect of it is a return of non est inventus as to the parties not served. The petition alleges all the parties named as defendants, to be “ of said county.” Under this state of facts, had the plaintiff a right to proceed against those defendants who had been served ? Our understanding of the practice, under the act of 1820, Cobb’s N. D. 484-5, Code 3263, is, that upon a return of non est as to any defendant against whom suit has been brought, as of the county where the suit is located, the Court will permit the plaintiff to proceed against those served. We are not disposed to disturb this practice. A plea in abatement should not be sustained by showing that the defendants not served reside in some other county in the State. The course adopted by the Court in this case seems to be a very good one, i. e. to delay the trial and give time to bring in the other defendants who may, by the sworn plea of the defendants served, be shown to be within the jurisdiction of the Court. We incline to think it will be better to leave the direction of such cases to the discretion of the Courts below; and their action should not be controlled except when an abuse of that discretion is shown.
2. That the plaintiff had a right to proceed against the surviving defendants after the death of some of those served, without making the representatives of the deceased parties, can admit of no doubt. Code 3377.
3. It is insisted .that this verdict is contrary to law because
4. It was insisted, that as a judgment was shown in favor of the plaintiff, against the Lawrenceville Manufacturing Company, and as the execution issued therefrom was absent and unaccounted for, the law presumes that the debt has been paid. Plaintiff showed a debt of record due to him, and if it had been paid, it certainly was for the defendants to prove it. The mere absence of the fi. fa. was no evidence of payment ; nor did the fact that the Company paid Gower his debt, raise a presumption of payment to the plaintiff. In Reynolds vs. Lyon, 20 Ga. R., 225, this Court decided that it is not necessary, in a suit to revive a dormant judgment, for the plaintiff to prove that an execution issued thereon is not vital and effective. If such be the fact, it is matter of defence. And so say we in this case. If the judgment be paid, it is matter of defence.
5. The great question in this case arises out of the construction of the instrument sued on. Much has been written on the subject of guar-ahty, and many cases decided involving questions connected with it. It is difficult, perhaps impossible, to reconcile all the decisions. In 2 Am. L. C., from p. 33 to 101, this whole subject is elaborately examined, and all the cases collated. From an examination of the decisions for the purpose of determining in what, classes of cases notice of
Judgment affirmed.