Johnson vs. The State of Georgia.

simply for amusement, without more, is not made an offence by the Act, however vulgar and debasing it may be. ·

Now, the charge of the Court, that if the defendant was proven to have played with the negro-whether he played for money or any other thing or things of value or not, he was guilty-seems, at first view, to conflict with this view of the Statute, and to warrant the exception. Not so, however, if carefully considered; for he may be guilty, although he does not play himself for money or other thing. He may play and bet not at all, yet play that others may bet. He may be guilty under the second form, in which-as stated above the Act defines the offence.

[3.] The Act of 1847 farther defines the mode of proof on the trial. By the 2d section, it is declared, "that on the trial of all indictments for said offence, the prosecution shall not be required to prove the game or games played, but shall be required to prove the playing or betting only." The last clause, in terms, sends the case to the Jury on proof of playing, and makes the other ingredient in the offence, an inference from that fact; which inference, the accused must rebut at his peril-that is, if his playing was without betting, and without a purpose that others may bet merely for amusement-he must show it in defence. The 2d section will bear this construction, but I must say that I am not fully satisfied with it; for I am not sure but that the generality of the last clause in the section is limited and restrained by the first clause. The construction is, however, in accordance with the policy of the Act, and may be justified by the difficulty of proving the offence at large. The same policy and the same necessity dictated the enactment, that the presence of a slave in a tipling shop within certain hours, or on the Sabbath day, shall be presumptive evidence of selling spirituous liquors to him, against the law. Hotchkiss, 771. These views dispose of all the assignments which relate to the charging, and refusal to charge, of the Court.

و

A motion was made to quash the indictment, because it does not allege that any specific sum of money, or any other specific article, was bet or staked on the game. This was not necessary. For it is not necessary, as we have seen, that the accused should bet at all. The indictment, moreover, charges the playing, and for the purpose of winning or losing money or spirituous liquors, contrary to law. At Common Law, the indictment would be held

Hollingshead vs. McKenzie.

wanting in distinctness and certainty, but it is sufficient under our Statute, for it describes the offence so plainly, as to make it intelligible to the Jury.

Let the judgment be affirmed.

No. 74. JAMES S. HOLLINGSHEAD, administrator, &c. plaintiff in error, vs. HARDY MCKENZIE, defendant.

[1.] If a bill is filed to enforce a parol agreement respecting lands, and the defendant, in his answer, admits the contract, without insisting on the Statute of Frauds, the Court will decree a specific performance, upon the ground, that the defendant has renounced the benefit of the Statute. But if the defendant should, by his answer, admit the parol agreement, and yet, insist upon the benefit of the Statute, he will be entitled to it, notwithstanding such admission.

[2.].It is not enough that there is a remedy at law to make the judgment at law a bar. It must be shown, not only that the matter alleged in the bill might have been set up by way of defence, but that it would have been as practical and as efficient to the ends of justice, and its prompt administration, as the remedy in Equity.

[3.] Where a creditor receives a deed to a tract of land, as collateral security, for the payment of a note, which is to be given at a future time, and the creditor dies before the note is given, and the consideration for the deed thus entirely fails, it would be fraudulent, in the administrator of the creditor, to retain the deed, when the object, for which it was given, had entirely failed, without fault on the part of the grantee; and Equity will order the instrument to be delivered up to be cancelled.

In Equity, in Macon Superior Court. Decision on demurrer, by Judge WARREN, March Term, 1850.

Hardy McKenzie, by his bill, alleged, that about the 14th February, 1842, he and one John M. Greer became sureties for one Warren Dykes, on three promissory notes, to one Miles K. Harman; that in 1844, he (McKenzie) made an agreement, verbally, with Harman, that Harman should give up the three notes, and

VOL. VIII. 58

Hollingshead vs. McKenzie.

take in lieu thereof the individual note of Dykes; in consideration of which, McKenzie agreed to give, as collateral security for the new note, a deed to one half of a tract of land in Macon County. In pursuance of this agreement, the deed was made and delivered to Harman, but from various causes, Harman failed to execute his part of the agreement, and died, holding the three notes still in his possession. Since his death, his administrator had recov ered judgment on the notes, and the same had been paid up by McKenzie. The bill prayed that the deed might be given up to be cancelled.

Demurrer. 1st. For want of equity; 2d. That the parol agreement cannot be proved to vary an absolute deed; and 3d. Complainant should have made defence to the notes sued.

The Court overruled the demurrer, and defendant excepted.

GILES and WARREN, for plaintiff in error, cited

Robson vs. Harwell

Miller vs. Cotten, 5 Ga. Rep. 346, 347. and Wife, 6 Ga. Rep. 595. Irnham vs. Child, 1 Bro. Ch. 93. Acts of 1837, pam. 111. Hotchkiss, 589. 1 Greenl. §§276, 285. 7 Bac. Abr. 244, '5.

Lead. Cas. 327, 30.

Moss vs. Riddle, 5 Cranch, 351. 2 Smith's

Maxwell vs. Connor, 1 Hill's Ch. R, 22.

Bostwick vs. Perkins et al. 1 Kelly, 139.

S. MILLER and R. P. HALL, for defendant, cited

Roberts on Frauds, 155, '6, 130, 78. 1 Bland's Ch. R. 248, 288. Story's Eq. Pl. §763. 2 Bland, 261. 8 Ga. Rep. 245. 1 Kent, 464. Chitty on Contracts, 741. Boyce, executor, vs. Grundy, 3 Peters, 10. Bac. Abr. 199. 1 John. Cas. 155. 3 John. 216. 11 John. 96. 6 Ga. Rep. 614, 623. 2 Kelly, 420. 4 Conn. 276. 2 Penn. 492.

By the Court.-LUMPKIN, J. delivering the opinion.

[1.] The complainant insists on his right to discovery, for the reason that the defendant, by his answer, may admit the parol agreement. But what of that, if he claims the benefit of the Statute? It would be utterly nugatory; for whatever doubts may have once existed, it is now well settled, that if the defendant should, by

Hollingshead vs. McKenzie.

his answer, admit the parol agreement, and should insist on the benefit of the Statute, he will be fully entitled to it, notwithstand-. ing such admission. Story's Eq. Pl. §763.

[2] It is contended, that as judgment has been obtained in a suit at law, against McKenzie, on the notes, in which the matter alleged in this bill, may have been set up by way of defence, that Equity has no jurisdiction. 3 Merivale's Rep. 225, 226. on Contracts, 113. Sugden on Vendors, 129.

Chitty

But the true rule, we understand to be this that it is not enough that there is a remedy at Law to make such a plea a good bar to a proceeding in Chancery-it must be shown that it was as practical and as efficient to the ends of justice, and its prompt administration, as the remedy in Equity. Besides, frauds and trusts are peculiarly within the jurisdiction of the Chancery Courts. 1 Mad. Ch. 262. 3 Cranch, 280. 9 Ves. 21. 1 Jacob & Walker, 19, 5 John. Ch. Rep. 174. 2 Conn. 129. 2 John. Ch. Rep. 596. 6 Munf. 283.. 4 Penn. Rep. 131. 3 Peters' Rep. 210.

[3.] On the main question, as to whether McKenzie is entitled to have the deed which he made to Harman in his lifetime, delivered up to be cancelled, the view we take of it is this-the note of Dykes, the principal debtor, was to have been substituted for the three notes of Dykes, McKenzie and Greer, and the deed to the land given as collateral security. The conveyance was executed, but Harman retained the original notes, in order to ascertain, by calculation, for what amount the new note should be taken, and died before the arrangement with Dykes, was consummated. Hollingshead, his administrator, finding the old notes amongst the of his intestate, has sued for and collected the papers due money thereon. Here, then, the deed which was originally valid, has, by subsequent events, to wit: the payment of the indebtedness, become fructus officio. It is a nullity to all intents and purposes, and a Court of Chancery will interpose in the administration of a protective or preventive justice, and decree a delivery and cancellation of the instrument. The case of Inock vs. Steyvesant, (2 Paige's Rep. 84,) was very similar to this. There, absolute deeds were made, but for the purpose of effecting certain objects not specified on their face. The objects contemplated by the parties. were prevented by an Act of the Legislature; and a bill was filed for a re-conveyance, as in the present instance, which was decreed with costs; and Chancellor Walworth lays down this

Johnson vs. Lewis.

broad principle, which he asserts is constantly acted upon, sub•ject to such limitations and restrictions as are necessary to protect the rights of bona fide purchasers and others, who have superior equities, namely: that where, from any defect of the Common Law-want of foresight of the parties, or other mistake or accident, there would be a failure of justice-it is the duty of a Court of Equity to interfere and supply the defect, or furnish the rem edy.

Judgment affirmed.

No. 75.-THOMAS S. JOHNSON, administrator, &c. plaintiff in error, vs. NATHAN G. LEWIS, defendant in error.

[1.] Upon an issue founded on an affidavit of illegality, filed by an administrator, de bonis non, with the will annexed, to a general judgment against the precedent executor to the will, which was levied on the property of the estate in the hands of the administrator: Held, that legatees, under the will, who have been paid their legacies, are competent witnesses, when called for the administrator.

Certiorari, Macon Superior Court. Decided by Judge WARREN, March Term, 1850.

The only point in this case arose upon the trial of an issue in a Justices Court, formed upon an affidavit of illegality, interposed by Thomas S. Johnson, administrator, de bonis non, of Elias Jourdan, deceased, to an execution founded on a judgment against the former executrix, whose letters abated upon marriage with John

son,

The administrator offered as witnesses two of the legatees under the will of Elias Jourdan, deceased, who being objected to, on the ground of interest, the administrator executed to them a release, relieving them from all liability to him on account of the debt; and the legatees executed release to the administrator of all claim upon the estate of Jourdan. The admisistrator, de bonis non, was proven to be solvent. The witnesses had received