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Carmichael vs. Greer, Lake & Company.

michael was sued with Martin as a member of the firm. He pleaded various pleas, among them, that he was not a member of said firm, and never was, and that he gave the plaintiffs notice of that fact in October, 1872.

The main foundation of the plaintiffs' case was a letter from Carmichael to them, dated September 23d, 1871, with these contents: “Mr. J. R. Martin has commenced a small business in his line of confectioneries, fruits, etc. I have taken an interest with him to help him to start. He is every way worthy-just asked me to introduce him to some house in Savannah in your line. I suggested that he could do as well with you or Walker. If you have them, send him a barrel of nice apples, one to two hundred oranges, the same bananas. Ship to J. R. Martin & Company, Montezuma. I will see that the bills are paid promptly.” There was evidence tending to show that all the goods contained in the bills sued upon were sent on the faith of this letter; all the transactions, amounting to over $1,700 00, and the payments received from time to time being in the aggregate $1,245 00, leaving a balance still due of $461 00. Certain admissions of Carmichael were in evidence, made in January, 1873, to the effect that he was a partner up to June or July, 1872, coupled with the assertion by him that the firm was then dissolved, and that he had given notice of the dissolution to the plaintiffs by letter. He, in his own testimony, denied that he ever was a member of the firm. He also testified that he instructed his book-keeper to give notice of this fact to the plaintiffs; and the book keeper testified that he gave such notice to one of the plaintiffs, on the 8th of October, 1872, and stated to him distinctly that Carmichael would not be liable for any goods purchased by Martin. One of the plaintiffs testified that the letter which Carmichael alleged was sent, giving notice of dissolution, was never received ; and the one to whom the book-keeper stated be gave notice, denied the fact, and testified that the notice given was that Carmichael intended to withdraw from the firm, but no statement that he had with

Carmichael vs. Greer, Lake & Company.

drawn, or was not a member, ever reached him until after all the account was created.

1, 2, 3. The court, in charging the jury, laid down as law, substantially, the propositions contained in the first three headnotes to this opinion, all of which we indorse as correct.

4. The court refused to charge, on the request of Carmichael's counsel, that the letter herein before quoted was not proof of a partnership, but amounted only to a guaranty. This refusal was, also, correct.

5. The court refused to charge, on the like request, the usual disparaging rule of law as to the slight worth of admissions, and the ordinary cautionary admonition as to receiving them. The great strength of this case lies in the representations made in Carmichael's letter as to his being interested with Martin; and these common places touching admissions are not applicable to that document. The request of the counsel seems to mix the contents of the letter with what

may have been said orally, and on that account is objectionable. Besides, if the request was legal throughout, the refusal to give it in charge is not of such importance, under all the facts of this case, as to amount to material error. After all the discount to which admissions are subject, there is still quite enough force left in the evidence to warrant the verdict.

6. The defendant requested a charge to the effect that a joint interest in the profits and losses was requisite to constitute a partnership, and this was refused. Rightfully, no doubt, for, in facing the representations contained in his letter, on the faith of which credit was extended to the firm, the defendant is not looking in ward towards his associate, but ontward towards a creditor who has been induced to act by the clefendant's assumed status, whether it be his real one or not. In such circumstances, it is altogether immaterial, what may be his relation to profits and losses. The question is, shall he abide by the relation which he has voluntarily assumed towards his creditor ?

7. It is complained that the court repelled testimony offered to show that Martin, during Carmichael's absence, and

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Cooper vs. Huff.

without his knowledge or consent, signed and used the firm name in other transactions. Surely this was not error. There was no evidence of knowledge on the part of the plaintiffs to make such testimony relevant.

8. The last ground of the motion for new trial is, that the verdict is contrary to law, to evidence and to the charge of the court.

These points of conflict seem to us altogether imaginary. The verdict harmonizes very well with all three. In fact, it is just such a verdict as we like to see in such a case.

Judgment affirmed.

Mary COOPER, plaintiff in error, vs. DANIEL HUFF, (le

fendant in error.

Where, upon the trial of a claim case, the plaintiff offered in evidence the ex

ecution under which he levy purported to have been made, having thereon

the following entry: “This execution issued in lieu of lost original. April 29th, 1873. (Signed)

“JESSE J. BRADFORD, Clerk S. C. M. C.Objection to its admissibility was properly overruled. Such entry, without

more, did not affect the validity, which it otherwise appeared to have, as an original execution.

Executions. Evidence. Before Judge JAMES JOHNSON. Muscogee Superior Court. November Term, 1874.

Reported in the decision.

RUSSELL & RUSSELL; B. A. THORNTON, for plaintiff in

error.

INGRAM & CRAWFORD, for defendant.

WARNER, Chief Justice.

This was a claim case, and on the trial thereof, the jury, under the charge of the court, found the property levied on

Smith, Son & Brother vs. Fouche et al.

subject to the plaintiff's execution. The case comes before us on a bill of exceptions to the rulings of the court in the progress of the trial. It appears from the record, that the execution offered in evidence by the plaintiff, had upon it the following entry:

“This execution issued in lieu of lost original. April 29th, 1873. (Signed)

JESSE J. BRADFORD,

Clerk S. C. M, C." The claimant objected to the introduction of the execution in evidence; the court overruled the objection and allowed it to be read, and that is the only error insisted on here to the ruling of the court. The execution on its face appears to have been issued as an original execution to enforce the judgment therein recited, and which was issued from the county court, and dated on the 4th day of August, 1867. What authority of law the clerk of the superior court had for making the entry upon it on the 29th day of April, 1873, that it was issued in lieu of lost original, and thereby convert an original execution into an alias execution, we are not advised. In no legal aspect of the case was that entry, without more, competent evidence to impeach or invalidate the original execution which had been levied on the property claimed, and the court did not err in overruling the claimant's objections to the execution because of the clerk's entry upon it, and in allowing it to be read in evidence to the jury.

Let the judgment of the court below be affirmed.

S. P. SMITH, Son & BROTHER, plaintiffs in error, vs. SIMP

SON FOUCHE et al., defendants in error.

1. Where the plaintiff in error presents his bill of exceptions to the judge of

the superior court with the certificate thereto erroneously dated, and requests the judge to alter the said date, but does not see that it is altered correctly by him, and his case is about to be dismissed by this court because of such uncorrected date, and he voluntarily withdraws it, and then files a bill

Smith, Son & Brother vs. Fouche et al.

for a new trial and injunction predicated upon such mistake, the said bill of exceptions having been within the reach of the diligence of said plaintiff for months, and no effort having been made by him to see that it was

correctly dated, or to correct the mistake: Held, that even if his original case so withdrawn had merit in it, a court of

equity will not relieve against such mistake coupled with such laches. 2. Where the owner of land sells it to another and takes bond for titles

thereto, and the vendee fails to pay but acknowledges the vendor as landlord and rents the land from him with lien upon the crop, and the vendee fails to pay the rent note and a distress warrant levied on the crop, and the same sold and the money brought into court, and the fund is claimed by factors' or merchants' liens for advances younger than the lien of the

rent: Held, that the landlord's or vendor's lien for rent will take the fund in prefer

ence to the junior liens for advances, though the parties advancing to the tenant had no knowledge or notice of the rent lien—their liens arising after the failure to pay note for purchase money at maturity.

Equity. Practice in the Supreme Court. Landlord and tenant. Factors' lien. Before Judge UNDERWOOD. Floyd county. At Chambers. November 18, 1875.

In September, 1873, Simpson Fouche sold a certain tract of land to Felix G. Sheats, giving his bond conditioned to make a title thereto on the payment of the purchase money. The first payment, $1,500 00, became due on January 1st, 1874. On February 2d, 1874, Sheats entered into the following agreement: “Whereas, I have been unable to meet said first payment, now, therefore, in consideration of the use and occupation of said land, and for the rent thereof for the present year, I promise to pay said S. Fouche the sum of $525 00, to become due on the 1st day of November, 1874.” Having failed to pay the rent, a distress warrant was levied on the crops grown on the land during the year 1874, the same sold and the money brought into court for distribution. This fund was claimed by Smith, Son & Brother, under certain factors liens executed by Sheats, in the year 1874, after the date of the aforesaid rent contract, for advances made to him during that year with which to make his crops. On January 16th, 1875, the court awarded the fund to the distress warrant. Smith, Son & Brother excepted and carried the cause to the

VOL. LV. 9.

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