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Ware vs. Simmons.

a verbal one, the defendant had no lien on Harrison's part of the crop for supplies furnished him, and if Harrison, by himself or agent, delivered the bale of cotton sued for, to the plaintiff in payment for his labor out of his half of the crop in pursuance of his contract with him, the plaintiff was entitled to the same as against the defendant. If Harrison failed to turn over to the defendant enough of his part of the crop to pay for the supplies furnished under his contract, that was a matter between the defendant and Harrison, he had no lien on the bale of cotton which Harrison, by his agent, had delivered to the plaintiff in payment for his labor. If the contract between the defendant and Harrison had been in writing, and had created a lien upon the entire crop made on the place for the rent thereof and supplies furnished, then he could have foreclosed his lien in the manner provided by the statute, and have levied upon the entire crop. There was no error in the charge of the court in relation to this branch of the case, in view of the evidence contained in the record.

2. The court having charged the jury that they might find the highest proven value of the cotton from the time of conversion to the time of the commencement of the suit, the jury found a verdict for $75 00 principal and the sum of $21 for interest. The court directed the jury to consolidate the principal and interest, which they did, and returned a verdict for $96 00. This direction of the court to consolidate the interest with the highest proven value of the cotton as a part of the damages which the plaintiff was entitled to recover from the defendant for the conversion of the cotton, was error: Barnett & Company vs. Thompson, 37 Georgia Reports, 335. We therefore reverse the judgment, unless the plaintiff shall consent to write off from the verdict the sum of $21 00, and in the event of his doing so, the judgment to stand affirmed for the sum of $75 00.

Judgment reversed on terms.

Wilson vs. The Bank of Louisiana et al.

55 981 59 185 60 210 70 743 71 173 80 627

EDWARD H. Wilson, plaintiff in error, vs. The BANK OF

LOUISIANA et al., defendants in error.

1. This court will not interfere with the practice in the Augusta circuit of

trying the issue on the traverse of the answer of the garnishee before the suit against the principal debtor is tried. It is enough if no judgment be entered against the garnishee until judgment is rendered against the prin

cipal debtor. 2. Admissions agreed upon by counsel as to facts in the case, will not be al

lowed to be withdrawn after the position of parties has been substantially

changed by the death of one or more parties or witnesses. 3. Counsel who agree upon such statement of facts are not parties to the

record so as to render one of them incompetent as a witness to testify about the circumstances under which the facts were agreed upon because the

other counsel is dead, 4. Government is not subject to garnishment. 5. Nor is an officer of its revenue so subject when funds sought to be reached

belong to government or are claimed by it and to which it has the possession by such officer, the said officer having no connection therewith as a private person, but having received it in his official capacity from his superiors as public money and holding it as such when served with the summons, and continuing so to hold it until transferring it by order of govern

ment to another similar officer. 6. It makes no difference in applying this rule, that the government was not

de jure, but de facto merely, if when the garnishment was issued and served, and when thereafter the officer parted with the fund, the state organization, whose functionaries issued and served the garnishment was in all its departments, legislative, executive and judicial, in full accord and co-operation with such de facto government, recognizing and obeying its constitution as

supreme law, and aiding with armed force to maintain its authority. 7. The government of the Confederate States, being recognized, obeyed and

upheld by the people and government of Georgia, was able to protect its revenue officers in 1863 from process of garnishment issued from the courts of Georgia. Those courts, as then constituted, were protected by the military power of the Confederacy, and their judges were sworn to support its constitution; and whilst both courts and judges existed de jure, they were then de facto, under a temporary political system then dominant, and that dominant government, its deposits and revenues, were beyond the reach of any process that those state courts and judges had power to issue and en

force. 8. To deny to the plaintiff now any fruits from a garnishment so issued

against a garnishee so situated—constrained in the line of his duty as an officer, before the downfall of the Confederacy, to surrender the fund to another officer-is not to hold that title could be divested by the Confederate government legally from the Bank of Louisiana, but it is to hold that


Wilson vs. The Bank of Louisiana et al.

this plaintiff, having voluntarily come within the Confederate lines and used the process of a state court in co-operation with that government, acquired no right, by such remedy instituted at that time in such a court, to the fund in the hands of the garnishee as an officer of the Confederate government. By using the process of the court so situated, he is estopped from denying the authority and dominion of the government, then de facto dominant over court, garnishee and people.

Practice in the Superior Court. Garnishment. Admissions. Witness. State. Confederate States. Estoppel. Before Judge Gibson. Richmond Superior Court. October Term, 1874,

Reported in the opinion.
W. W. MONTGOMERY; C. N. WEST, for plaintiff in error.

W. T. GOULD; FRANK H. MILLER, for defendants.


This suit was brought against the Bank of Louisiana by service of garnishment upon Thomas S. Metcalf, in the year 1863. Metcalf answered that he owed the bank nothing, and had no effects of the bank in his hands at the time of the service. This answer was traversed; he died pending suit, and his executor was made a party. The jury found, under the charge of the court, for Metcalf; a motion for a new trial was made on various grounds alleged in the record, overruled on all, and the case is before us on assignment of error thereon.

1. The first ground is as to matter of practice in the Augusta circuit. There they try the issue on the garnishment before the main suit is tried, to ascertain whether the court has jurisdiction in a case like this. No judgment against the bank wuld stand unless the court got jurisdiction by the garnishment, and we will not control the court below in following the practice of the circuit. It seems reasonable. As we understand it, action is suspended, or the judgment against the garnishee remains passive, if obtained, till a verdict and judgment are rendered against the principal; if no judgment is

Wilson vs. The Bank of Louisiana et al.

had against the garnishee, the case goes out, there being no jurisdiction, in such a case as this, then in the court.

2. The second assignment of error is that the court ought not to have admitted the agreement of counsel. Witnesses have died since the agreement was made, and the party desiring to do so could not withdraw it under these circumstances. The decisions of this court are in harmony with this view, and it is right in principle and just to all: 39 Georgia, 617; 43 Ibid., 142; 49 Ibid., 303.

3. The third ground is, that Judge Gould was permitted to testify as to the circumstances under which the above stated agreement was made after the death of Judge Starnes, the counsel for Wilson. We are not aware of any rule of law which would exclude his testimony. He is no party, and has no interest, and was always a competent witness whether Judge Starnes were living or dead.

4, 5. But these are merely incidental and preliminary points. The great question in the case is, whether, under the facts, which in the main are undisputed, Metcalf's estate is liable for the debt Wilson claims that the Bank of Louisiana owes him. Those facts are, that just before the fall of New Orleans into the Federal hands, under General Butler, that bank removed a large amount of coin to Columbus, Georgia; that the Confetlerate government, then dominant over Georgia, seized it and appropriated it to its own use; that thereafter it sent the coin to Augusta, Georgia, Columbus being threatened by the Federal forces, and placed it in the hands of Metcalf, drawing on it ad libitum and using it as its own; that subsequently, Augusta being threatened in its turn, it was transported by order of the Confederate authorities to Charlotte, North Carolina, to another depository there, and then all trace of it was lost. Was Metcalf's answer true or false? Did he owe the bank anything, or have any of their effects in his hands, so as to make him liable to pay the debt the bank owed Wilson, under the law applicable to these facts ? No government is liable to the process of garnishment. Public convenience requires that it should not be so

Wilson vs. The Bank of Louisiana et al.

subject. Its revenues must be collected free from interruption. Indeed, it cannot be sued, except at its own will. But its revenues must, from the very nature of government, be in the hands of private persons. It can act only through agents, and to preserve its revenue, the agents, who are the custodians of it, must also be free from the process of any court touching the public funds. If Metcalf, in 1863, had been the agent of the United States government, or if process of garnishment were sued out now against an agent of that government, it cannot be doubted but that it would be dismissed; or if the process were served upon such agent as an individual, and he answered that he owed nothing, and the facts showed that what he owed or held was government property or money, or claimed by it as such, the traverse would undoubtedly be found in his favor.

6, 7. Now, the precise point made here, is this: The government of the Confederate States was a usurping government, therefore the rule does not apply. But it must be borne in mind that Georgia was, in 1863, part and parcel of that government; she was aiding in the usurpation, if it was a usurpation; the Confederate authorities were then paramount over her as to this revenue or coin ; that was a government de facto, if not de jure, to which all within the limits of Georgia were forced to submit; the very court to which this process was returned, and from which it issued, was, in 1863, a court subordinate to the Confederate government; its officers, from the judge to the clerk and sheriff, were required to take an oath to support that government; and can it be said, with any show of reason, by one who sought the courts of Georgia and invoked her process in 1863, to secure his debt, that in 1875 she was supporting an usurpation, and that a citizen of hers in the employment of the government she ihen upheld will not now be protected by her, if he acted in obedience to her behests and in conformity to her example, as an officer and agent of the Confederate government in good faith; and will she, can she, unless, indeed, the vis major be applied to her courts to coerce them, deny to her

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