Turner vs. McCarter.

cise. We appreciate the derangements of business in the midst of an army, and the fact that where law ceased to give protection the ordinary rules may be relaxed, yet the jury ought to have the matter fully before them. If a watchman was there, what was done to take care of the property when thrown off, or if not there, why? There may or may not be ample and satisfactory reasons; but we are of opinion such should be made to appear. We reverse the judgment of the Court below that the whole case may go to the jury under the charge of the Court upon the law.

E. A. TURNER, plaintiff in error, vs. JOHN K. MCCARTER, defendant in error.

Where a suit was pending against two joint and several obligors, one of whom claimed to be security only for the other, and this was known to the plaintiff, and the principal had filed a plea to the merits of the action, and the plaintiff, without the action or consent of the surety, and after the surety, satisfied that no trial could be had on the plea at that term of the Court, had gone home, dismissed his suit as to the principal, to get clear of the plea, and then took a judgment against the surety, and the surety filed a bill to enjoin the judgment, alleging these facts, and alleging, further, that at the time the suit was dis.. missed against the principal, the debt was barred by the Statute of Limitations, and if the surety paid the debt, he was, by this act of the plaintiff, deprived of his rights to recover it from the principal: Held, That there was equity in the bill, and the Judge, on the facts of the case, as they appeared on the bill, answer and affidavits, ought to have granted the injunction until the trial could be had on the case made by the bill.

Practice.

Injunction. Principal and Surety. Before Judge HOPKINS. DeKalb county. Chambers. February,

1871.

In 1863, E. A. Turner and H. H. Weaver gave to McCarter a promissory note, signed by them, and due on the

Turner vs. McCarter.

12th of March, 1863. In 1869, McCarter sued them thereon as joint promissors. No plea appears by the record. At September Adjourned Term, 1871, McCarter's attorneys dismissed, as to Weaver, and took a judgment, by default, against Turner. Fi. fa. issued and was proceeding to sell Turner's property. He prayed for an injunction. He averred that he was, in fact, but Weaver's security, and that McCarter knew it; that Weaver had filed a plea, which is lost, and the cause had to stand for trial before a jury, in its regular order. He said he filed no plea, because he was willing for a judgment to go against him and Weaver, jointly. That the plaintiff's attorneys waited till the last day of the term, when it was obvious that said cause could not be reached in its order as a cause at issue, and, after he had left Court, dismissed as aforesaid, without notice to him, and took said judgment. He said he should not be compelled to pay the note, because by such action of plaintiff's counsel, suit against Weaver was forever barred by the Limitation Act of 1869. Further, he said said judgment was void, because plaintiff had filed no affidavit of payment of taxes, nor proved their payment, as required by the Relief Act of 1870.

The Chancellor ordered McCarter to show cause why the injunction should not be granted. The answer admitted all the statements in the bill, except the loss of Weaver's plea, and that Turner was but Weaver's security. It stated that Weaver's sole plea was that, in 1863, he had tendered McCarter Confederate currency in payment of the note, which he refused, and which Weaver kept for him till it was worthless, and it charged that Turner was a principal debtor. On the hearing, there was evidence, pro and con, as to the alleged securityship of Turner. The Chancellor refused the injunction, and that is assigned as error.

J. B. STEWART and L. J. WINN, by L. B. SPENCER, for plaintiff in error. Obligation and rights of sureties: R. Code, secs. 2122, 2138; 19 Ga. R., 551. As to laches in

Turner vs. McCarter.

defending: 1 Ga. R., 136; 2d, 275; 3d, 78; 4th, 181; Dan. Ch. Pr., 141; R. M. Charlton's R., 93. Surety not bound to plead R. Code, secs. 2139, 3128. As to tax, etc.: Acts 1870, p. 31.

HILL & CHANDLER, by the REPORTER, for defendant: Weaver had his day in Court: R. Code, secs. 3621, 3537. Judgment set aside for fraud or laches, unmixed with negligence or fault of movant. Act of 1870 unconstitutional.

MCCAY, J.

The record in this case shows that the defendant, having a suit pending against the complainant and Weaver, to which Weaver had filed a defense, dismissed it under such circumstances as, in law, to discharge the complainant from the debt on which the suit was founded.

Complainant sets up that he was, in fact, only security on the note, which McCarter well knew; that being only security, he rested upon Turner's defense, and filed no plea of his own; that he stayed in attendance at the Court until it was well ascertained that the case, it being, as a plea was filed, a jury case, would not be tried, that after he had gone home, and just before the Court adjourned, the plaintiff in the suit, McCarter, in order to get clear of Weaver's plea, dismissed the suit as to him, and as the case was then without a plea, took a judgment against the present complainant, by the Judge's order on the minutes, under the new rules of the Court. The bill charges that, at the time the suit was dismissed as to Weaver, the note was barred by the statute of limitations, and that the necessary effect of the dismissal was to injure the complainant by depriving him of his right to go upon Weaver, the principal, in case he paid the

money.

If these facts be true, we think the case a clear one for the complainant. Here was an act of McCarter, which "increased his (complainant's) risk, exposed him to greater lia

Turner vs. McCarter.

bility, and injured him:" Revised Code, 2126. Here is a case in which, by the act of the creditor, "the liability of the principal became extinct:" Revised Code, 2121. This act of the principal did not and could not have come to the knowledge of the surety until after the judgment against him.

It is an every day exercise of chancery jurisdiction to grant a new trial and enjoin a judgment at law in consequence of the discovery of a defense which the complainant did not know of, and could not, with proper diligence, have known before the judgment at law: 1 Georgia Reports, 136; 2 Georgia Reports, 275; 3 Georgia Reports, 78; 4 Georgia Reports 181. This defense did not accrue until a few minutes before the judgment, and from the very nature of it could not have come to the knowledge of the security. We are clear, therefore, that if the complainant has stated the facts truly, he has a strong claim to relief. The answer admits all the facts but one; especially, does it admit the amendment dismissing the suit as to Weaver under the cir cumstances charged. The fact not admitted, but positively denied, is that the complainant was Weaver's security. We are not sure that the complainant would not have the same ground of relief, if he is to be considered a joint obligor instead of a security. It was a serious wrong against Turner for McCarter to dismiss the suit versus Weaver under the circumstances. A creditor has no right to act so as to discharge one joint obligor to the injury of his co-obligor. And even under the state of facts set forth by McCarter, however the parties might stand as to him, as between themselves Weaver was the principal, and the loss of the debt as against Weaver would be a total loss to Turner if he has it to pay.

But we think the evidence that Turner was only surety, even as to McCarter, is very strong. On one side we have the statement of Turner and of Weaver, of two of the arbitrators and of Norton. On the other, the statement of McCarter, and of two others, both of whom, however, only testify

McCullough vs. Mitchell.

negatively, to-wit: that they did not hear the statements testified to by the other witnesses. The evidence for the complainant largely preponderates, and we think the injunction ought to have been granted. Indeed, we suppose the refusal of the Judge was not put on the facts but on the law, and on the effect of the judgment. But as we have said, this was not under the circumstances a bar, and we reverse the judgment. Judgment reversed.

HUGH MCCULLOUGH, plaintiff in error, vs. THOMAS P. MITCHELL, defendant in error.

An award of arbitrators under the arbitration law will not be set aside on the ground that it is illegal, because contrary to the evidence, unless it be so contrary to the evidence as to require the inference that it is the result of fraud, accident, or gross mistake of law or fact on the part of the arbitrators; and if an award has been attacked upon this ground before the Superior Court, under the provisions of section 4184 of the Revised Code, and the question has been submitted to a jury, who have found in favor of the award, and the Judge has refused a new trial, it must be a very strong case, indeed, to justify this Court in overruling the Judge and directing a new trial.

Arbitration. New Trial. Before Judge KIRBY. Floyd Superior Court. July, 1870.

In May, 1867, there was a controversy between Mitchell and McCulloch respecting the sale and purchase of Mitchell's interest in the Rome Foundry and Machine Works by McCullough. And whereas, they desired a "a fair and equitable adjustment of the same," they submitted to their attorneys: 1st. Whether McCullough was deceived by Mitchell's representing to him that the property had cost him $23,000 cash, including his salary, it being admitted that Mitchell so stated. 2d. If it had not cost him so much, whether McCullough was entitled to any abatement of the agreed price, and