Webb v. Wynn

35 Ga. 216 | Ga. | 1866

Lumpkin, C. J.

Ought this injunction to have been dissolved? The fact that the Chancellor thought not, would be sufficient to control us in a case like this. As we have said in other cases, if his discretion has not been grossly abused, we should not reverse him. He had the whole matter before him, both the action at common law and the bill in equity. He did not go out of his Circuit to interfere with litigation not be* fore him, but with all the parties in his jurisdiction, he thinks it best to retain the bill. Perhaps the defence could be available at law; for, though not technically a plea of payment, nor of accord and satisfaction, yet I see not, under our Judiciary, which requires the party defendant plainly, fully and distinctly to set forth his cause of defence and submit his case to the jury — I say, I see no fatal obstacle in the way. He might not have encountered any difficulty in the proof; but why should the defendant in the bill object to the bill, as it calls for his answer, which he has filed, thus giving him the benefit of his own oath ?

By the decree in equity, the notes can be delivered up and be canceled, and thus annoy "Wynn’s estate no more. This, too, can be done at common law; which, by its enlarged powers, granted to it by the Legislature, can so mould the remedy as to mete out justice to both parties. Suffice it. to repeat, that Judge Wobeill, presiding in both Courts, thought it best to retain the bill; and, inasmuch as the case has progressed so far in equity, and there is not much more delay or expense in^ one tribunal than the other, we do not see proper to control the Judge.

Judgment affirmed.