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Bawknight vs. The Liverpool and London, etc., Company.

home office, and it be concluded without opportunity to defend on the merits.

If it be replied that such a corporation might have assets, property, in Georgia, which can be reached only in Georgia, the answer is that a suit in rem will bind all that and harm nobody. Such a judgment will enable the creditor to reach all the property in Georgia in the hands of the corporation or in other hands. Attachment and garnishment will reach all: Wilson vs. Danforth, 47 Georgia Reports, 676. It is true that in the case just cited, Judge MCCAY intimates that such suit, begun by attachment or garnishment, might open into a suit in personam by service upon the agent; but it is obiter dictum, and the expression was used simply suggestively and argumentatively.

On the whole, there is no statute expressly authorizing suit against a foreign corporation in personam in Georgia, we think. By construction and upon reason the statute designed for domestic corporations, has been extended to suits against them; but hitherto, the construction has been applied only to contracts made by agents here among our own people. The reason for the rule ceases when it is sought to apply such construction to a foreign judgment so as to allow it to be sued in personam here; and the reason ceasing, we think the application of the wide construction of the statute should also cease. As this view will dispose of this case we deem it unnecessary to consider the other point or to express an opinion thereon. The judgment is affirmed, because the court below should have dismissed the bill when the motion therefor was made before his honor, Judge Schley, at the previous term, and to which ruling exceptions pendente lite were filed and are here for adjudication, this court not passing upon the reasons given by Judge Tompkins for dismissing the case, but affirming the act of dismissal, because it should have been previously done, the court having no jurisdiction of the case in per

sonam.

Judgment affirmed.

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Wimberly vs. Bryan.

ABNER P. WIMBERLY, plaintiff in error, vs. ROBERT S.
BRYAN, defendant in error.

1. Where the defendant paid $1,000 00 in part of purchase money for land,
and agreed to pay $3,000 00 more, and the plaintiff placed him in posses-
sion thereof, where he still remains, such acts constitute a part performance
of the contract of sale which would take the same without the operation
of the statute of frauds, although such contract had not been reduced to
writing.

2. Where, to a suit upon a note for the balance of purchase money due on land, brought by the vendor, the defendant pleaded that he, the plaintiff, and one W., had agreed that he should pay such balance on a note held by W. against the plaintiff, a demurrer thereto was properly sustained. The plea does not allege that W. had any such vested interest in the note for such balance, by virtue of any valid contract made with the plaintiff as would entitle him to receive the amount due thereon to the exclusion of the plaintiff if he thought proper to collect it in his own name, and to revoke any authority given to W. to receive it.

Statute of frauds. Part performance. Pleadings. Powers. Contracts. Before Judge JAMES JOHNSON. Talbot Superior Court. September Term, 1874.

Reported in the decision.

E. H. WORRILL; M. H. BLANDFORD, for plaintiff in error.
WILLIS & WILLIS; H. L. BENNING, for defendant.

WARNER, Chief Justice.

This was an action brought by the plaintiff against the defendant on a promissory note for the sum of $3,000 00. The defendant pleaded to the plaintiff's action, that said note was given in consideration of a verbal agreement made by the plaintiff with the defendant for the sale of certain described lots of land, and was therefore void under the provisions of the 1950th section of the Code. The defendant also pleaded that at the time of the making of the alleged contract mentioned in plaintiff's declaration, he agreed to pay $4,000 00 for the purchase of a tract of land, $1,000 00 in cash, and the balance of the purchase money to one Lewis Wimberly upon a note made by plaintiff to said Lewis Wimberly then in the

Wimberly vs. Bryan.

hands of Laura, the wife of plaintiff. The defendant also pleaded that at the time of the making the said supposed contract, it was agreed between plaintiff and the defendant and Lewis Wimberly, and Laura Bryan, the wife of plaintiff, that the defendant should pay the $1,000 00 in cash for the land to the plaintiff, and the balance to the said Lewis Wimberly, etc. The plaintiff demurred to the defendant's pleas, the court sustained the demurrer, and the defendant excepted.

The case was then tried on the evidence contained in the record, and the jury found a verdict for the plaintiff. The defendant excepted to the charge of the court, which was in substance as follows: that if plaintiff agreed to sell the land mentioned to defendant, and defendant paid $1,000 00 of the purchase money, and agreed to pay $3,000 00 more, and if plaintiff put defendant in possession of the land, and he still retains possession of it, that then this was such a part performance of the said contract as took the same without the operation of the statute of frauds, although said contract was not reduced to writing, and no memorandum in writing of the same was made and signed by the parties to be charged therewith, and the plaintiff would be entitled to recover the balance of the purchase money agreed to be paid for the land.

There was no error in sustaining the demurrer to the second and fourth pleas of the defendant. It is not alleged in the pleas that Lewis Wimberly had such an interest in the plaintiff's note as would entitle him to be paid the money due thereon, to the exclusion of the plaintiff's right to collect and receive it. In other words, the pleas do not allege that Lewis Wimberly had such a vested interest in the $3,000 00 due on the note, by virtue of any valid contract made with the plaintiff as would entitle him to receive it from the defendant, to the exclusion of the plaintiff's right to do so, if he thought proper to collect it in his own name, and to revoke any authority given to Lewis Wimberly to receive it. In view of the evidence in the record, there was no error in the charge of the court to the jury.

Let the judgment of the court below be affirmed.

.

Archer et al. vs. Heidt.

JAMES E. ARCHER et al., plaintiffs in error vs. EMANUEL HEIDT, defendant in error.

1. Where the testimony is conflicting and there is enough to support the verdict, this court will not control the discretion of the circuit judge in refusing to grant a new trial.

2. A new trial will not be granted on the ground of newly discovered testitimony, where the testimony thus called newly discovered is that of a witness examined on the trial to a point which he did not remember, but who, afterthe trial, having refreshed his memory, is enabled to testify positively thereon.

3. Nor will a new trial be granted on the ground of a mistake of the witness on the trial, when such witness simply fails to remember a fact, though afterward he does certainly recall it, even if such witness had been called by the party adverse to the movant, and had refreshed his memory from a memorandum which he (the witness) had made on a plat prepared for the adverse party and drawn from his possession since the trial. This case is unlike that of the Rolling Mill vs. The State, 54 Georgia Reports, 635, and is controlled by the case of Jones vs. McCrea, 37th Georgia Reports, 48.

New trial. Newly discovered evidence. Before Judge SCHLEY. Effingham Superior Court. April Term, 1874. Reported in the opinion.

A. P. ADAMS, for plaintiffs in error.

RUFUS E. LESTER, for defendant?

JACKSON, Judge.

This was a bill filed by Heidt against Archer and Watts, to restrain them from erecting a mill and dam so as to form a pond of water upon the complainant's land. The facts alleged are, in substance, that Heidt being about to erect a dwelling house as a permanent residence, exchanged certain lands with two brothers named Elkins, by which he got control of a millpond, then dry; that the line was run through the pond; that the Elkins got possession of his land, and he held possession of this, so exchanged, for eleven years; that Watts had bought the mill-site from Elkins and sold to Archer, giving bond for titles, and that they were about to erect the

Archer et al. vs. Heidt.

dam, overflowing lands for cultivation and injuring his residence for health. The evidence was quite conflicting on the whole case; and on the main issue, which was whether the line surveyed in 1862, which gave Heidt control of the part of the pond he claimed, was the true line to which he held possession, or the line surveyed in 1866, which did not give him possession of any part of the dry mill-pond. The jury found for the complainant, and a motion was made for a new trial, and refused by the court. Defendants excepted, and assign for error that the court should have granted the new trial-first, because the verdict is against the weight of the evidence; and secondly, because new evidence had been discovered since the trial.

1. It is enough to say, on the first ground, that this court will not disturb the verdict of a jury if there be evidence to support it, when it is fortified by the judgment of the court below, unless in an extreme case. We do not think this such a case. The equities seem to be in favor of the complainant; the truth fits more completely with the reason assigned by him for the purchase or exchange of lands; his desire to get control of the mill-pond or ground covered by it. Watts admits that he told Heidt, who warned him when about to buy the mill-site, that he could not overflow the pond, that he would not erect the dam, and excused himself by saying that he was not now going to do so, but that Archer was about to do so, who only held Watts' bond for titles. It has very much the appearance of combination between them to do through Archer what Watts could not, consistently with Heidt's warning, do himself. At all events, we will not interfere with the court's ruling on this ground.

2. The second ground is predicated on the discovery of new evidence. The surveyor, who testified that he did not. recollect that Heidt acquiesced in the division line of 1866 on the trial, now swears, that since the trial, he has refreshed his recollection with his memorandum upon a plat made by him for Heidt, and got from Heidt's possession since the trial; and this is the newly discovered evidence on which the new

VOL. LV. 14.

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