Birdsong & Sledge vs. McLaren.

No. 84.-BIRDSONG & SLEDGE, plaintiffs in error, vs. PÉTÉR MCLAREN, defendant.

[1.] Affidavits, under our attachment laws, should be signed by the Magistrate before whom they are taken, with the addition of their official description.

[2.] Where the attachment bond is made payable to the individual members of a firm, when the attachment itself is sued out against the firm, and it does not recite that the obligees compose said firm, the bond and attachment are both void.

--Attachment, in Muscogee Supérior Court. Tried before Judge ALEXANDER, May Term, 1850.

This was an attachment sued out by Peter McLaren, against the firm of Birdsong & Sledge. The affidavit was not attested by the Justice of the Peace, and the bond was made payable to Edward Birdsong and Nathaniel Sledge. The defendants appeared and entered their defence.

On the appeal, a motion was made to quash the attachment, on the ground that there was no affidavit or bond as required by law. The Court allowed the Justice of the Peace to enter his attestation, nunc pro tunc, and overruled the objection to the bond. This decision is assigned as error.

There were other exceptions filed, but not decided in the Supreme Court.

W. DOUGHERTY, for plaintiffs in error.

H. HOLT, for defendant.

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

[1.] In Jackson vs. Valentine, (3 Caine's Rep. 128,) the Supreme Court of New York ruled that the jurats of affidavits, taken before the Judges of the Common Pleas or Commissioners, must be signed by them, with the addition of their official subscriptions Judges of the Common Pleas to style themselves such, and Com missioners to specify that they are so.

-For myself, I believe that the paper purporting to be an affida VOL. VIII. 66

Boyds vs. Clements.

vit, wanting as it did the signature and official attestation of the Magistrate, was a nullity under the attachment laws of this State, and that it was not amendable.

[2.] But the other objection was fatal. The attachment was sued out by McLaren against the firm of Birdsong & Sledge, and the bond was made payable to Edward Birdsong and Nathaniel Sledge, as individuals, without reciting that the obligees composed said firm; whereas, the attachment law requires that before granting the attachment, the creditor shall give bond and security in double his debt, payable to the defendant. Prince, 31. And that all attachments issued and returned in any other manner, shall be null and void. Ibid. Now, the defendant is the firm of Birdsong & Sledge, and not Edward Birdsong and Nathaniel Sledge. I need not point out the legal consequences which would result from this discrepancy.

Let the judgment be reversed.

No. 85.-JOHN F. and ROBERT BOYD, administrators, &c. plaintiffs in error, vs. William Clements, guardian, &c. defendant.

[1.] The 4th Common Law Rule of Practice is not applicable to causes in Equi...

[2.] When a cause in Equity is pending, and the pleadings are made up and the issues joined, the complainant is not entitled to amend, as à matter of right, but amendments will be allowed, in the discretion of the Court, upon special cause shown.

[3.] Surprise is good special cause for the allowance of an amendment.

In Equity, in Muscogee Superior Court. Tried before Judge ALEXANDER, May Term, 1850.

On the trial of this cause on the appeal, after the proofs and pleadings were submitted to the Jury, the complainants' counsel opened his case to the Jury, insisting on various errors in the returns of the intestate of Robert and John F. Boyd to the Court of

Boyds vs. Clements.

Ordinary, on the estates for which his administrators were now called to account. Defendant's counsel replied and insisted be fore the Jury, that under the pleadings, these errors could not be insisted on. Counsel for complainant then stopped counsel for defendants, and insisted on a verbal agreement dispensing with any such allegations in the bill, which being denied, counsel for complainant moved for a continuance, on the ground of surprise, in order that the bill might be amended. The Court granted the motion, and this decision is assigned for error.

The Court then granted an order, allowing the bill to be amended on the showing by counsel of his understanding of the verbal agreement; and this decision is also assigned for error.

G. E. THOMAS and W. DOUGHERTY, for plaintiffs in error.

H. HOLT, for defendant in error.

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

[1] The 4th Common Law Rule of Practice does not apply to causes in Equity, and the complainant was not entitled to an amendment in this case as a matter of right.

[2.] Amendments to bills pending on the appeal, are not allowable but in the discretion of the Court; and when the pleadings are made up, and the issues joined, that discretion will not be ex ercised to grant amendments but upon special cause shown. Berry vs. Mathews, 7 Geo. R. 457. Georgia R. R. & Banking Co. vs. Milner & Co. 8 Geo. R. 315.

[3.] In this case, the cause shown is surprise, and our judgment is, that the presiding Judge properly allowed the amendment, and also the continuance for the purpose of the amendment. Let the judgment be affirmed.

Boyds vs. Clements.

vit, wanting as it did the signature and official attestation of the Magistrate, was a nullity under the attachment laws of this State, and that it was not amendable.

[2.] But the other objection was fatal. The attachment was sued out by McLaren against the firm of Birdsong & Sledge, and the bond was made payable to Edward Birdsong and Nathaniel Sledge, as individuals, without reciting that the obligees composed said firm; whereas, the attachment law requires that before granting the attachment, the creditor shall give bond and security in double his debt, payable to the defendant. Prince, 31. And that all attachments issued and returned in any other manner, shall be null and void. Ibid. Now, the defendant is the firm of Birdsong & Sledge, and not Edward Birdsong and Nathaniel Sledge. I need not point out the legal consequences which would result from this discrepancy.

Let the judgment be reversed.

No. 85.-JOHN F. and ROBERT BOYD, administrators, &c. plaintiffs in error, vs. WILLIAM CLEMENTS, guardian, &c. defendant.

[1.] The 4th Common Law Rule of Practice is not applicable to causes in Equity,

[2.] When a cause in Equity is pending, and the pleadings are made up and the issues joined, the complainant is not entitled to amend, as à matter of right, but amendments will be allowed, in the discretion of the Court, upon special cause shown.

[3.] Surprise is good special cause for the allowance of an amendment.

In Equity, in Muscogee Superior Court. Tried before Judge ALEXANDER, May Term, 1850.

On the trial of this cause on the appeal, after the proofs and pleadings were submitted to the Jury, the complainants' counsel opened his case to the Jury, insisting on various errors in the returns of the intestate of Robert and John F. Boyd to the Court of

Boyds vs. Clements.

Ordinary, on the estates for which his administrators were now called to account. Defendant's counsel replied and insisted before the Jury, that under the pleadings, these errors could not be insisted on. Counsel for complainant then stopped counsel for defendants, and insisted on a verbal agreement dispensing with any such allegations in the bill, which being denied, counsel for complainant moved for a continuance, on the ground of surprise, in order that the bill might be amended. The Court granted the motion, and this decision is assigned for error.

The Court then granted an order, allowing the bill to be amended on the showing by counsel of his understanding of the verbal agreement; and this decision is also assigned for error.

H. HOLT, for defendant in error.

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

[1] The 4th Common Law Rule of Practice does not apply to causes in Equity, and the complainant was not entitled to an amendment in this case as a matter of right.

[2.] Amendments to bills pending on the appeal, are not allowable but in the discretion of the Court; and when the pleadings are made up, and the issues joined, that discretion will not be ex ercised to grant amendments but upon special cause shown. Berry vs. Mathews, 7 Geo. R. 457. Georgia R. R. & Banking Co. vs. Milner & Co. 8 Geo. R. 315.

[3.] In this case, the cause shown is surprise, and our judgment is, that the presiding Judge properly allowed the amendment, and also the continuance for the purpose of the amendment. Let the judgment be affirmed.