extend to amounts under $100, and the matters in dis- pute were referred to an arbitrator, and upon the re- turn of the award, which was in favor of the plaintiff, for $68 14, besides interest, a motion was made to dis- miss the case for want of jurisdiction, as the plaintiff, by his own admission, only claimed $81 96, it was proper in the Court to sustain the motion. Clements
3. The records of the Court of Ordinary are amendable so as to make them speak the truth, upon the proper steps being taken for that purpose. The fact that the Court had no jurisdiction to grant the order, which it is proposed to amend, cannot affect the motion to amend. If the jurisdiction did not exist, parties whose interests may be affected by the judgment can take advantage of the want of jurisdiction as well after as before the amendment, whenever and wherever it in- terferes with their rights. Thompson et al. vs. Kim- brel et al............ 529 4. Upon a motion to amend the records of the Court of Ordinary, the only issue before the Court is whether the amendment proposed will make the record speak the truth. Whether the original order was legally passed or not is irrelevant and impertinent to the issue. Nor can such order, if illegal, be set aside in this proceeding. The case is not altered where the motion is to rescind an order allowing the amend- ment. Ibid.
5. Where an executor is sued as such, in the county of his residence, and, pending the suit, dies, and admin- istration de bonis non is granted upon the estate of his testator, who lived and died in a different county, to a citizen of the county of the testator's residence, the suit against the executor does not abate, and a scire facias issued to make the administrator de bonis non a party to the suit, should not have been dismissed un- der the facts stated. Walton vs. Gill, administrator; Leonard et al. vs. Same; Weeks, executor, vs. Same... 600
1. Persons residing within the corporate limits are in- competent jurors to try a suit against the city. John- son vs. Mayor and City Council of Americus...
2. It is not error in the Court to refuse to strike from a panel of twenty-four jurors a juror somewhat deaf, at the instance of defendant, who himself struck the juror in selecting a jury, and from which refusal no damage is shown to have resulted to the defendant. Anderson vs. Green, executor........
3. That there was a substitute for the juror selected by the parties, who answered to the name of his princi- pal, is no ground for new trial, it not appearing that both substitute and principal were unknown to defen- dant and his own counsel. Ibid.
4. That the name of one of the persons who tried the case is not upon the jury list of the county, as made up in conformity to the Act of the General Assembly of February 15th, 1865, is an objection propter defec- tum, and comes too late after verdict, though the party objecting did not know the fact until after the trial. 40 Ga., 253. Ibid.
5. Jurors cannot be heard to impeach their verdict. Ibid.
1. A certiorari does not lie to correct the errors of a Jus- tice of the Peace, in a judgment involving questions of fact, when the amount of the judgment is over fifty dollars. In such cases the remedy is by appeal, as provided by the Constitution of 1868. Witkowski vs. Skalowski.....
LAND. See Bond for Titles, 1, 2, 3, 4.
LANDLORD AND TENANT.
1. The holder of a rent note, who is not the landlord, cannot sue out a distress warrant for rent not due. But when, in such a case, the affidavit made for the distress warrant, describes the sum sued for as the rent for a plantation owned by a third person, and the rent note is payable to such third person or bearer, it does not necessarily follow that the affiant is not the land- lord. If such was the fact, it should be proved upon an issue raised by counter-affidavit before the jury, and the Court asked to charge the law applicable to the case. Scott, trustee, vs. Berry.....
2. A married woman may sue out a distress warrant for rent of her separate estate without joining her hus- band or next friend. Urquhart vs. Urquhart............. 415 3. If an affidavit is made for a distress warrant, for rent due in specifics, which does not aver the value of the specifics, but upon the trial of the issue formed by the counter-affidavit of defendant before a Justice of the Peace, the value is proved and substantial justice has been done, a certiorari should not be granted for want of averment of the value of the specifics, or for allow- ing such value to be proved in the absence of any averment of value. Ibid.
4. Upon an issue formed to try whether any rent is due on a distress warrant, questions asked a witness, as to whether defendant ever owned the land, and as to how he came in possession of it, may have been properly ruled out. If the object was to show that the defend- ant owned the land during the time for which the rent is alleged to be due, the record should go further, and show affirmatively that evidence tending to prove that fact was ruled out. Ibid.
5. Where an execution was levied upon a lot of cotton which was sold and the money arising from the sale was claimed under a distress warrant for rent of the land, on which the cotton was made, and the Court adjudged the warrant irregular but refused to pass any order disposing of the money until the landlord could procure a new distress warrant, which he did before the adjournment of the Court, and the money was awarded to him:
Held, That this was not error. Harrison vs. Guill et al. 427 6. One who rents land and sub-lets it to a third person stauds in the relation of landlord to the sub-tenant and may have a distress warrant for his rent. 7. An owner of land, who contracts with a cropper that he shall furnish to the cropper certain supplies with which to make the crop, and that the share of the cropper should not be moved from the place until such advances are paid for, has a right to retain the crop until said advances are paid, against the cropper and all purchasers from him, or mortgagees, subse- quent to the date of the contract. Appling vs. Odom et al.......
LEAVE OF ABSENCE. See Attorney, 4, 6.
LEGACY. See Will, 4, 5, 9.
1. The laborer or mechanic who does the work and fur- nishes the materials, is the person entitled to a lien upon the property of his employer under the provis- ions of the Act of 1869. Breed vs. Nagle........
2. The laborer or mechanic is not entitled to a lien on any greater interest in the property than his employer had at the time the work was done or the materials furnished. Ibid.
3. Where the affidavit to foreclose a lien on a steam saw mill, under the Act of 1868, alleges that depo- nent was employed by Wall, the owner or lessee of a steam saw mill situated in the county of DeKalb, as a laborer in and about said mill, for which services there is due deponent $51 50; that he has demanded payment of said Wall, and he has failed and refused to pay the same; that this prosecution is within one year from the time the debt became due, as will more fully appear by reference to the bill of particulars hereto annexed; that deponent claims a lien upon said mill for the amount so due him as aforesaid, it is in substance a compliance with the provisions of the Act under which plaintiff was proceeding. Wright vs. Phillips........
4. Where the bill of particulars attached to the affidavit consisted of a due bill for the amount claimed, made by Wall, it was competent for plaintiff to show that it was given for the services specified in the affidavit, that Wall was in possession of the mill at the time of the foreclosure of the lien, and of the levy of the exe- cution thereon. Ibid.
5. When A loaned money to B, to be used by B in re- building a certain mill of B's, which had been de- stroyed and was being rebuilt, and it was understood that A was to have a lien on the mill to secure him, but no writing or other written memorandum was made, except the giving of notes for the money, and
there was no charge of accident, fraud or mistake by which the execution of such a writing was prevented: Held, That after B's death, on a bill to marshal his as- sets, equity will not set up in favor of A a lien on the mill, to the prejudice of the other creditors of B. Printup vs. Barrett, administrator....
6. Where a wife, with consent of her husband, rents land on her own account, hires a man to cultivate it, and furnishes and feeds a horse out of her separate estate, to be used in making the crop, the crop, when made, is not subject to a factor's lien given by her hus- band on his crop, made the same year, for provisions furnished, especially when the evidence shows that none of the provisions furnished were used by the wife in making her crop. Dubose vs. McDonald...... 471 7. An owner of land, who contracts with a cropper that be shall furnish to the cropper certain supplies with which to make the crop, and that the share of the cropper should not be moved from the place until such advances are paid for, has a right to retain the crop until said advances are paid, against the cropper and all purchasers from him, or mortgagees, subsequent to the date of the contract. Appling vs. Odom et al....... 583 8. An affidavit by an officer or employee on any steam- boat, made under section 1969 of the Code, for the purpose of foreclosing a lien on such boat for any debt that the affiant may have against the owner or lessee of the boat, must state the name of the person or persons owing the debt, as well as comply with the other requirements of the statute. This is necessary to give the State authorities, who cannot proceed solely in rem in such a case, jurisdiction. And where the averment is, that demand was made upon the agent, it should state that the demand was made on the agent of the owner or lessee, as the case may be, and not on the agent of the boat. Cape Fear Steam- boat Company vs. Torrent et al.........
9. The affidavit being the foundation of the proceeding, the execution issued thereon must conform to it, and cannot supply its defects. Where the affidavit con- tains all the requirements of the law, the execution, if defective, may be amended so as to make it conform to the affidavit. Ibid.
« AnteriorContinuar » |