14 Ga. 379 | Ga. | 1853
By the Gourt.
delivering the opinion.
The opinion referred to settled this point, to wit: that by bonds or other obligations, the Legislature did not moan instruments under seal alone, but meant to include in the words “ or other obligations” other contracts in writing. (Davis vs. Smith 5 Ga. Rep. 275). It is a little remarkable that our learned
I now proceed to say that a debt standing in account, as this debt stands, was not intended to be classed with the open accounts of the statute. If not classed with them, and as it must have place somewhere in the statute, the conclusion at which we arrive is, that it belongs, with simple contract debts, in writing, to the class of bonds or other obligations. I apprehend that it is a common error to suppose that all debts not reduced to writing are open accounts. By open accounts in strict legal phraseology is meant, debts not reduced to writing, and which are subject to future adjustment and may be reduced or modified by proof. (1 Kelly 288.) Such as accounts running between merchants — a merchant’s accounts for the sale of goods, and all others of like character. These are the accounts which we suppose the Legislature intended should be last paid, and which they designate as open accounts. Between these and other accounts there is a radical legal difference. Such other accounts as that we are now considering, to witan account for so much money collected as the money of another. These latter are not open — they are not subject to future adjustment —to reduction or modification. When proven, they are fixed legal obligations — as much so as a simple contract in writing. I know of no way by which open and other accounts may be discriminated more safely than by the application to them of those rules of law by which it is determined whether they bear interest. A liquidated demand bears interest, and if a demand
Is it unreasonable to suppose that the Legislature had in view the distinction I now draw between open and liquidated accounts ? If they intended to embrace all debts in account in the last class, why did they say open accounts ? Why did they not say accounts ?
Nor is it unreasonable to suppose that all debts in account not open, were intended to be embraced in the word obligations. It is conceded that the technical meaning of this Avord is an undertaking under seal. But the Legislature did not use it in that sense, because they had already, in the use of the word bonds, included instruments under seal. Nor is the technical meaning of obligation its only meaning. It means a tie by which one is bound, under the laAvs of the land, to do a given act — as to pay money. In this sense it is distinguishable from Avhat it is in the sense of the evidence of a contract. An instrument under seal is an obligation, because it is under seal, and this account is also an obligation, because, by the laAvs of the State, AA'lien the money is proven to have been collected, the estate is bound to pay Avhatever siun was collected. The Legislature, by obligations, meant something different from bonds — either this is true, or they did stultify themselves. A bond is an instrument under seal. Suppose they had said instruments under seal, or other instruments under seal. If they had, stultification would be patent on the statute. But the Legislators of that day were not “men by the catalogue”, but wise men and true. When using the word obligations in connection with bonds, they expressed a class of debts different from bonds, or its synonym, sealed instruments. They intended to name a class of debts, of which this is one, which are not open accounts, and which are not evidenced by a writing under seal. This meaning of obligation is not foreign to the common sense and lingual usage of our people, and it has a warrant in sound legal distinctions. We are confirmed in the propriety of this
Let the judgment bo reversed.