Hood, adm'r, vs. Townsend et al.

of exceptions shows as follows: Hood, as administrator for Jarrett Turner, for the use of Francis Logan, sued Townsend, as maker, and William C. Henson, as endorser, on a promissory note, payable to himself as such administrator, for $380 00, dated the 8th of July, 1861, due one day after date, signed by Townsend, and transferred as follows: "I assign this note to F. Logan for $150 00, July.the 16th, 1862." Whether this transfer was signed by any one does not appear. On this note were the following credits: $75 00, 15th September, 1861; $12 40, 21st October, 1861; $17 00, 2d December, 1861; $20 00, April 1st, 1862. The defendants plead that the note was given during the late war, and that a tender of the full amount was made to plaintiff, and he refused to accept it. Plaintiff introduced the note and closed.

Townsend's wife testified that the latter part of 1863, or the first part of 1864, she went with Confederate Treasury notes sufficient in amount to pay off the note, and offered to pay it therewith, but plaintiff said he had enough of that kind of money, and refused to accept the payment, and said he did not look to Townsend for the money anyway. In rebuttal, plaintiff showed that at the date of said note no Confederate currency had been issued, and that at the time of the alleged tender, such currency was worth but five cents in the dollar of specie, and further, that after the war Townsend was dunned upon the note, made no objection to it, but left a note for $150 00 for collection, with instructions to apply its proceeds to the payment of this note; that the jury scaled the collateral note to $50 00, and then Townsend refused to allow said $50 00 applied to this note unless it was accepted as full payment.

Plaintiff's counsel requested the Court to charge the jury that if said note was made before Confederate currency was issued, the holder was, not bound to take that currency in payment. The Court gave the request with this addition: "but there might, nevertheless, arise an equity between the parties which might authorize you to reduce the amount, scale the note." He further requested the Court to charge that such a tender alone would not authorize the jury to

Hood, adm'r, vs. Townsend et al.

reduce the debt, unless there was some equity arising out of the facts and circumstances of the case between the parties. The Court read the request to the jury, and said, "I simply add that this would depend on the circumstances of the case, evidences showing equities."

He further charged as follows, and not otherwise: "If you are satisfied, from the evidence, that the defendant tendered the balance due on the note to the plaintiff, then he is entitled to such credit, or such a deduction, on the balance as you may think just and equitable. If you are satisfied, from the evidence, that this. note was made in July, 1861, after the war commenced, then it is a Confederate contract, and evidence would be admissible to show equities between the parties, and if you are satisfied, by the evidence, that the note was endorsed by W. C. Henson to F. Logan, you may then inquire what is the date of that endorsement, and you may consider what the equities are between Logan and Henson, for the endorsement made a new contract between Henson and Logan. So you may look into the date of the endorsement to get at the equities between them." Further, upon request of plaintiff's counsel, if you are satisfied, from the evidence, that this note was given before the war commenced, and that it has never been transferred, or that it is payable to orphans, the defendant would take no benefit from the mere fact that he tendered the Confederate money.' The jury found for plaintiff for $25 00 only; whether against both does not appear. Plaintiff moved for a new trial upon the grounds, that the Court erred in his said qualifications of plaintiff's requests to charge, and in charging as he did, and because the verdict, was contrary to the law and the evidence. The refusal of the new trial is complained of here.

JOHN L. FAIN, H. P. BELL, for plaintiff in error, as to the tender, cited 37th Georgia Reports, 16; and as to the Relief Act, the former decisions of this Court in 39th Georgia Reports et seq.

No appearance for defendant in error.

WARNER, J.

Pulliam et al., vs. Sewell et al..

From the facts disclosed by the record in this case, we think the charge of the Court to the jury was error, and calculated to have mislead them as to the rights of the parties under the contract sued on. The note sued on was a Confederate contract, and is within the provisions of the Ordinance of 1865. In our judgment the Court below erred in not giving that Ordinance in charge to the jury, as the equities of the parties were to be regulated and adjusted by it. The Ordinance of 1865 was the law applicable to the facts of the case.

Let the judgment of the Court below be reversed.

THOMAS PULLIAM et al., plaintiffs in error, vs. JOHN A. SEWELL et al., defendants in error.

Under the former rulings of this Court, a decision of the Court below that the homestead is subject to the payment of a judgment obtained prior to the passage of the Homestead Law, which does not fall within one of the exceptions mentioned in said Act, as construed by this Court, is erroneous.

Homestead. Constitutional Law. Before Judge DAVIS. Franklin Superior Court. April Term, 1869.

In 1867, Sewell obtained a judgment against Pulliam, upon which a fi. fa. was issued. On the 8th of December, 1868, this fi. fa. was levied upon Pulliam's land. On the 28th of said December the land was set apart as Pulliam's homestead under the Homestead Act of the 3d of October, 1868. Pulliam met the fi. fa. with an oath of illegality, the ground being that because the homestead had been so set apart it was not subject to levy and sale under said fi. fa.

Sewell's attorney moved to dismiss the oath of illegality upon the grounds that, as applied to this judgment, the said Act was void, because it impaired the obligation of Sewell's

Venable vs. Born, adm'r.

contract, or, if not so, it was an incumbrance on the land, and therefore within the exceptions to said Act, and last, that as Pulliam had failed to avail himself of the Act until after a levy and advertisement, the fi. fa. should proceed for for costs at least. Nothing more appearing, the Court dismissed the illegality, and ordered the fi. fa. to proceed. This is assigned as error.

(The same facts substantially existed in other cases pending in said Court. They were dismissed in the same way, and the defendants joined Pulliam, by consent, in a common bill of exceptions.)

HUTCHINS & MCMILLAN, by HILLYER & BROTHER, for plaintiffs in error.

No appearance for defendants in error.

BROWN, C. J.

The Judge states in the record that he made no decision on the question of costs. But he held that the homestead was not exempt from the payment of the judgment. We have already decided the question that controls this case. Judgment reversed.

WILLIAM R. VENABLE, plaintiff in error, vs. WILLIAM J. BORN, administrator, defendant in error.

A petition was filed in the Superior Court, to establish a copy of a lost note, and the defendant on the trial of the issue formed thereon be tween the parties, offered evidence to prove that the original note was given for a slave, which was objected to, but admitted by the Court, and the Court charged the jury, "that if you should determine from the evidence that the original note was given for a slave, say so by your verdict, and stop right there," and the jury returned a verdict that the note was given for a negro; whereupon, the Court granted an order that the case be dismissed at plaintiff's cost. A motion was made for a new trial, which was overruled: Held, that the Court below erred in holding, and deciding that because the original note was given for a

Venable vs. Born, adm'r.

slave, the petitioner could not establish a copy thereof, in lieu of the lost original; the right of the petitioner to establish a copy of his lost note, as provided by law, is one thing; his right to enforce it after it is established, in the Courts of this State, is another and different question.

Lost Note. Slave Debt. Before Judge DAVIS. Gwinnett Superior Court. September Term, 1869.

Venable averred that Daniel D. Born, on the 20th of November, 1860, gave his promissory note to R. C. Gaines, who, on the 28th of May, 1862, sold it to him, that Born paid on it $140 00, in 1861, and died without paying the balance, that William J. Born administered upon his estate and refused to pay the note, that it was lost in 1865, and prayed that a copy of it might be established. William J. Born pleaded that the note was paid by D. D. Born, and that it was given for a slave.

Venable's counsel demurred to the last plea, and the demurrer was overruled. Evidence was then introduced by plaintiff to show the existence of the note, and by defendant to show that it was paid, and that it was given for a slave. All the evidence going to show that the consideration of the note was a slave, came in over the objection of Venable's counsel.

The Court charged the jury: "You will first determine from the evidence whether the note was given for the purchase-money of a slave, and if you find from the evidence that it was given for a slave, say so by your verdict and stop right there," and that, if they were not satisfied that its consideration was a slave, then to inquire whether it was paid, and that if it was given for a slave, or paid off, it could not be established. The verdict was that the consideration of the note was a slave. And thereupon the Court passed an order dismissing the case.

Venable's counsel say that the Court erred in overruling said demurrer, in hearing the evidence as to the consideration of said note, in charging as he did as to the consideration of the note, and in dismissing said case.