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Turner, et. al. vs. Irwin.

4. The cotton was not removed to Albany for the purpose of avoiding the fi. fas., or in any wise to defraud plaintiff. It was not his intention to remove the cotton from Albany; it was placed there for storage.

At the hearing, counsel for plaintiff in error moved to dismiss the levies upon the ground that the affidavit of the plaintiff (in fi. fa.) was not in compliance with the provisions of the Ordinance of the State Convention re-enacting the so-called stay law. This motion was overruled by the Court on the ground that the affidavit was in substantial compliance with the stay law. The Court also overruled the affidavit of illegality, and ordered the fi. fas. to proceed; and this ruling is alleged as error.

VASON & DAVIS and Hoop, for plaintiffs in error.

LYON & IRVIN, for defendant in error.

LUMPKIN, C. J.

[1] On the first of November, 1865, the Convention. passed an Ordinance to prevent the levy and sale of property of debtors, except in certain specified cases, among which was this: "Where the defendants are about to remove their property beyond the limits of any county in this State." Irvin's executions were levied 30th January, 1866, issuing on judgments dated 7th December, 1865-the plaintiff making affidavit that the property had been removed, since the rendition of the judgments, from Terrell county, where it was produced, to Cook's warehouse, in the city of Albany, and, as he had reason to apprehend, it would be removed from thence and sold.

This affidavit of the plaintiff, it will be perceived, is not required to be taken by him before he is entitled to levy. He acts upon his own judgment and responsibility. If the property is not subject, the defendant can bring trespass, or the debtor can file his affidavit of illegality, and have the

Turner, et al. vs. Irwin,

issue tried-I mean, of course, under the stay hindrance of the Convention. The plaintiff, however, made his affidavit as preliminary to the levy, and the defendant, after the passage of the stay law, amended his affidavit, inserting additional facts; still, he admits the removal of the cotton from Terrell county, where there were depots and places of deposit for cotton, to Albany.

Upon the facts thus presented by the affidavit of the plaintiff and counter-affidavit of the defendant, the Court decided that the words of the stay Ordinance, to-wit, that the debtor "was about to remove his property without the limits of the county," were substantially complied with; and that is the only question excepted to, and which we are called upon to review, the other questions being expressly waived in the argument.

We consider that the removal of the cotton, after the rendition of the judgments, under the facts and circumstances of this case, was such a removal, under the Ordinance, as entitled the plaintiff to make the levy; and the defendant, conceding the facts, instead of going before a jury, upon an affidavit of illegality, left the law of the case to be decided by the Court.

As the stay law was passed before the cotton was sold, the amended affidavit of the defendant was evidently intended to avail himself of its provisions, not, indeed, to insist on the constitutional competency of the Legislature to pass that law; (that question is clearly not in the record, nor was it passed upon by the Court below,) but to take himself out of the exception provided by that Act. There is one fact as to putting himself under the stay law the defendant did not give or offer to give the bond required by that Act, in order to suspend the sale. He is not, therefore, entitled to its benefit.

As to the constitutionality of the stay law, it is natural that the profession and the people should be anxious to know how the question will be decided by this Court. We again repeat, sufficient unto the day is the evil thereof. For my

Ford, et. al. vs. Finney.

self, I should look upon it as a misfortune to decide it either way; still, when it comes, if come it must, we hope to meet it as best we may, unflinchingly, I hope, in the discharge of duty, considering, however, that the delay in the meantime subserves the best interest of the country, both as regards the creditor and debtor classes. How many claims have been compromised since this subject was first agitated? and this process is constantly going on. One propitious season would so far relieve our impoverished people as to allay much of the excitement that has hitherto agitated the country. More than four-fifths of a century have elapsed since the Constitution of the United States was adopted. In that time, there have been State decisions both for and against a stay law; and yet, strange to say, no appeal has been taken to the Supreme Court of the United States. That question has never, as yet, been directly met and adjudicated by that tribunal. It would ill-become us to step out of the way to decide it under such circumstances. At best, it would be but the individual opinion of the members of the Court, and not the judgment of the Court itself.

Judgment affirmed.

JAMES J. FORD and BELL & GASKILL, plaintiffs in error, vs. ANDREW T. FINNEY, defendant in error.

One taking a bond for titles by assignment, under a contract to pay the purchase money due to the original vendor, may be compelled by a Court of Equity to perform his contract. It is not a parol promise to answer for the debt of another; nor is it s parol contract for the sale of land.

In Equity. In Fulton Superior Court. Demurrer. Decided by Judge WARNER. October Term, 1866.

Ford, et. al. vs. Finney.

On the 14th of September, 1865, Ford, Bray & Co., a copartnership of which James J. Ford, one of the plaintiffs in error, was a member, purchased of Bell & Gaskill, the other plaintiffs in error, a lot in the city of Atlanta, giving their three promissory notes therefor, due respectively the first of January, the first of April, and the fourteenth of August, 1866, and taking a bond for titles to be made by Bell & Gaskill when all the said notes should be paid off. Under this purchase, Ford, Bray & Co., went into possession of the premises, and then sold out to Ford & Finney, another copartnership, composed of the said James J. Ford and the defendant in error, Andrew T. Finney. Ford, Bray & Co. transferred to Ford & Finney the said bond for titles, and the latter firm undertook and agreed with the former to pay off the said notes to Bell & Gaskill. Under this arrangement, Ford & Finney entered into possession of the lot, and commenced building thereon. When the building was nearly completed, to-wit, on the 2d of January, 1866, Ford sold out his interest to Finney, transferring to him the bond for titles, and leaving him in the sole possession and ownership of the premises. Finney gave Ford, for his interest, about four hundred dollars, besides agreeing with him to pay off the said notes to Bell & Gaskill. After this, Finney obtained a policy of insurance on the building. The building was destroyed by fire, and the money due on the policy was collected by Finney.

Finney failed to pay anything upon the notes to Bell & Gaskill, and after they all matured, and two of them were placed in suit against Ford, Bray & Co., the makers, and threats had been made by Bell & Gaskill to sue on the third also, Ford filed his bill against Finney, (amending it subsequently so as to make Bell & Gaskill complainants with him,) in which he alleged the foregoing facts, and moreover, that Bell & Gaskill were able, ready and willing to execute to Finney good and sufficient titles in fee simple to said premises, upon the payment of said notes; that Ford had repeatedly requested and urged him to pay the same; but that he utterly failed and refused so to do.

Ford, et. al. vs. Finney.

The bill prayed that Finney might be decreed to specifically perform his contract with Ford by paying off and discharging said notes, and for discovery and general relief.

Finney, the defendant in the bill, demurred to it for want of equity, and because the contract set forth, not being in writing, was not such as a Court of Equity will enforce, and because the complainant Ford, did not show himself to be in a condition to perform the same on his part.

The Court sustained the demurrer and dismissed the bill. To this the complainants excepted.

COLLIER & HOYT, for plaintiffs in error.

HAMMOND & MYNATT, for defendant.

WALKER, J.

The very learned Judge who presided in this cause dismissed the bill on the grounds, as we understand, that the contract between Ford and Finney was such as could not be enforced, being obnoxious to the statute of frauds. Code, sec. 1952, clause 2. We think he erred. In the first place, we do not think Finney made any "promise to answer for the debt default or miscarriage of another." The contract, as we construe it, is this: Ford sells his interest in the city lot to Finney, and, in consideration of the written assignment of the title bond to Finney, he paid Ford four hunred dollars, and promised to pay to Bell & Gaskill thirty-eight hundred dollars more; that is, Finney purchases the lot, takes a bond for titles, and promises to pay thirty-eight hundred dollars in addition to the four hundred already paid to Ford. It is a simple contract of purchase and sale, and the only feature which distinguishes this from an ordinary contract is, that Finney promises to pay the thirty-eight hundred dollars to Bell & Gaskill instead of to Ford, or Ford, Bray & Co. This is the debt of Finney, and this he promises to pay. He is liable to pay, although his promise is not

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