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Brunson vs. Sparks.

ploughed him all day, and upon returning home, the horse turned out of the road, the tenant pulled the line, it broke and the horse ran away. This tenant said that he was not in fault, but that the matter was attributable to the worn line which Sparks had loaned, with which to work the horse.

The defendant testified that he did not know Sparks, had moved into the neighborhood only three days before, found said tenant on the premises, and consented that he should remain and cultivate a parcel of ground for half of its products, and that he suggested to the tenant to plough it, and the tenant went of his own accord and borrowed the horse, without any instructions from him. The jury found for the plaintiff the value of the horse. Defendant moved for a new trial upon the ground that the verdict was strongly and decidedly against the weight of the evidence. The Court refused a new trial, and that is assigned as error.

as

L. F. GERRARD, for plaintiff in error, cited secs. 398, 2071, 2000, 2062, 30, 34, 37, Rev. Code, and 19th Ga. R., 440, to care used by bailees.

W. F. WILLIAMS and C. R. RUSSEL, by JAMES M. RUSSEL, for defendant.

LOCHRANE, C. J.

The question in this case comes before the Court from the refusal of the Court below to grant a new trial. Under the facts in this case the whole question for adjudication was fairly submitted to the jury, and there is sufficient evidence to sustain their verdict. And under the well established rules of this Court we will not disturb the judgment of the Court below in refusing a new trial, inasmuch as we are satisfied with the verdict of the jury.

Judgment affirmed.

Conner vs. The Southern Express Company.

MARTIN CONNER, plaintiff in error vs. THE SOUTHERN EXPRESS COMPANY, defendant in error.

An action at law does not abate by the bankruptcy of the plaintiff, and if the assignee in bankruptcy be discharged, without any interference by him with the suit, it may proceed in the name of the bankrupt, the presumption, in the absence of any proof to the contrary, being that the action is proceeding for the benefit of the true owner, whoever he may be.

Abatement. Bankruptcy. Before Judge JOHNSON. Muscogee Superior Court, May Term, 1870.

Conner brought case against said Company for the loss of his goods. When the cause was called for trial, defendant's counsel said plaintiff could not proceed because, pendente lite, Conner was adjudged a bankrupt. This was admitted, and plaintiff's counsel then proposed to make Conner's assignee in bankruptcy a party plaintiff. It was replied that he had been discharged and this was admitted; but the assignee was present and consented to be made a party. The Judge said. the cause had abated, and refused to make the assignee a party. Conner's counsel then stated that they were interested, having a fee of fifty per cent. on the recovery, and proposed to have the cause proceed in Conner's name for their use. This was refused, nothing more appeared and the cause was held to have abated. These refusals and this holding are assigned as error.

H. L. BENNING, J. F. POU, PEABODY & BRANNON, for plaintiff in error.

MOSES & GERRARD for defendant in error, said party having legal interest must sue: Code, sec. 3192. If he be dead, suit abates, secs. 3375, 43, 18. Bankrupt Act, 1867, shows that assignee must act, and if one be discharged, another must be appointed. It could not proceed for attorney's benefit: 36th Ga. R., 630. Bankrupt is civiliter mortuus:

Conner vs. The Southern Express Company.

24th Ga. R., 494. Usee real party: Code, secs. 3437, 2848. Assignee must sue: 1 Ch. Pl., *25; 3 Bos. and Pul., 40; 3 B. and Ald., 697; 7 East, 53; Eden B. L. 244.

MCCAY, J.

This is an anomalous case. Pending the proceedings in bankruptcy, and until the assignee was discharged, we are not clear that, under the Bankrupt law of the United States the bankrupt could proceed in his own name : United States Bankrupt Law, sections 18, 43, 16. Though it would seem that, by the English practice, where the rules of pleading too are very precise, the suit may proceed in the name of the bankrupt: 2 Wilson, 372; 3 T. R., 437; 7 East, 64; 1 T. R., 463; 1 B. and Adol., 459; 2 Daniel and L., 49; 3 Taunt, 59, and Peck vs. Jenniss, et al., 7 Howard, 612.

But it appears that the proceedings in bankruptcy have been concluded, the whole matter settled and the assignee discharged. We must conclude that, for some proper reason, the title to this claim has reverted to the bankrupt. Prima facie, that is true, because the assignee has not undertaken to control it. It may have been left to the bankrupt after paying all his debts. It may have been allowed him as his poor debtors' exemption under the Bankrupt law. It may have been allowed to him on a composition with his creditors. as provided by the Act, even after the fiat of Bankruptcy, We do not assert as true, any of these things. The presumption is, that the judgment of the Bankrupt Court, dicharging the bankrupt and the assignee, closes up the business. If there was fraud, the fraud was in obtaining the discharge of the assignee, which will not be presumed, and cannot be set up by this defendant here. Prima facie, at least, this claim belongs to the plaintiff. The fact that there has been an assignee, and that he has been discharged, does not affect the question; since, as we have said, the presumption is that the

Ransom & Company vs. Coleman.

assignee, as the agent of the Bankrupt Court, would not have been discharged, leaving this claim undisposed of, had there not been some proper reason for leaving it in the control of the plaintiff.

Surely, the debt of the defendant was not discharged. There is no other person authorized to sue it, and it is but fair to presume that the plaintiff is now pressing it for purposes consistent with honesty, and for the use of whoever is entitled to the proceeds.

We think, therefore, the Court erred in holding that the suit abated until it is made to appear that the plaintiff is not the true owner, or is not asserting this right fairly; we think he had a perfect right to proceed, and it is not for the defendant to object.

Judgment reversed.

W. A. RANSOM & COMPANY, plaintiffs in error vs. ISAAC COLEMAN, defendant in error.

[LOCHRANE, C. J., having been of counsel in the Court below, did not preside in

A bill was filed against two. cross-bill against the other.

this cause.]

The answer of one defendant contained a The bill was dismissed for want of equity. The cross-bill was amended and an order was taken that the other defendant be served with a copy, and that the cause, as between these defendants, stand for trial at the next term. The defendant in this crossbill brought up the cause:

Held, That he was premature. R.

Writ of Error. Jurisdiction of Supreme Court.

Mrs. Coleman brought an action of divorce against Isaac Coleman. Pending this case Isaac Coleman made an assignment to W. A. Ransom & Company, and Mrs. Coleman filed her bill against them to set aside said assignment, and

Ransom & Company vs. Coleman.

praying for a Receiver. One was appointed, but had been discharged before this cause came on for trial. Ransom & Company and Isaac Coleman had answered the bill. Isaac Coleman's answer set up a cross-action against Ransom & Company, and also prayed that said assignment be set aside.

When the cause came on for trial, and the bill of Mrs. Coleman and the answer of Isaac Coleman were read, the Judge, upon his own motion, ordered both answers off the files. Then, upon motion of Isaac Coleman's counsel, the Court dismissed Mrs. Coleman's bill for want of equity, and ordered that their cross-bill be amended and served upon Ransom & Company's counsel. The bill was dismissed without objection. The last motion was granted over the objection of Ransom & Company. The Court ordered the Clerk to keep said answers in his office. Ransom & Company's counsel then asked the Court to tax the costs against Mrs. Coleman and Isaac Coleman. He said he would tax Isaac Coleman with no costs but that of amending his crossbill. The Court then continued the cause thus made between Isaac Coleman and Ransom & Company, until the

next term.

Mrs. Coleman did not except. Ransom & Company say that the Court erred in allowing Isaac Coleman's cross-bill to be amended and served, thus making a new cause, in continuing it, and in refusing to tax the costs as they wished.

When the cause was called here, counsel for defendant in error moved to dismiss the writ of error because it was premature; said that the parties must wait till something is done or sought to be done with the new case. The Court being of opinion it was prematurely here, the record was withdrawn.

CHAPPEL & RUSSELL, for plaintiffs in error.

BLANDFORD & THORNTON, GEO. S. THOMAS, by the REPORTER, for defendant.

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