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Fraser vs. The State of Georgia.

at night as if to visit a patient, and while talking to the murderer about the supposed sick person, he was shot down by the false messenger. Suspicion rested upon the defendant ; he was arrested, tried and found guilty, and being recommended to mercy by the jury, was sentenced to the penitentiary for life. A motion was made for a new trial on various grounds, it was overruled on all of them, and the case comes before us for review. The evidence is very voluminous; the question turns on circumstantial testimony, and without going into detail, it will be sufficient to state briefly the points made in the motion for a new trial and the facts on which these points rest for decision.

1, 2. The defendant had step-children, his wife was dead, one of these step-children he cohabited with illicitly, and sought to marry her. They all left him, and deceased took them to his house and cared for them, and this testimony was admitted to go to the jury. We think it legal as showing motive in the defendant to kill, and coupled with an effort to get them back, and resistance on the part of deceased in a habeas corpus case, it is admissible to show malice, and therefore one ingredient, and the main one, of murder.

3. Letters were also introduced showing an eager desire to get possession of the step-daughter whom he wished to marry; one to her and one to another person, one without date and the other purporting to come from Atlanta, where defendant had not been. One of the letters admitted the incestuous intercourse with the girl. These were also objected to. We think them admissible for the reasons given above.

4. The court told the jury that the state claimed that there had been a difficulty between deceased and prisoner and that they should see about that; and this was objected to as an erroneous charge. We think the charge right. There had been difficulties about these children, especially the much injured girl, and it was proper for the jury to consider them.

5. It is also complained that the sayings of defendant about the speed of his horse were admitted to go to the jury. It was right, we think. The defendant was twelve or thirteen

Fraser vs. The State of Georgia.

miles off at eight o'clock at night or after, and the speed of the horse to show that he could make the distance by a little after ten, in less than two hours, was material to the issue, and he ought to have known how swift the horse he was riding was, and his sayings are admissible against himself.

6. The verdict, we think, is right; at all events, it was for the jury to decide on the facts. Their decision is sustained by the evidence, and is not against the law. No complaint is made of the charge except upon the single point alluded to about the difficulty between deceased and defendant, and we presume the court gave the law correctly as to circumstantial evidence, and how full and clear and exclusive of other rational theories of the case, consistent with the evidence, it should be, to authorize a conviction.

Defendant said he had been to kill a man, who was not at home, the night before, and the murderer was at Dunwoody's the night before, and Dunwoody was not at home. Defendant had a double-barreled shot gun, and rode a horse such as is described. This gun was loaded with the sort of buckshot which killed deceased, and with the number of shot found in the body of deceased and in the door and house where the killing was done. He took ten buckshot to load it, one fell on the floor and did not go in the gun, and nine were found. One witness recognized him on the gray horse, and riding rapidly towards Dunwoody's house. Many saw him, but failed to recognize his face, but the description they gave fit his appearance. He failed to account for his absence from the party at Scarborough's, from eight o'clock to nearly midnight, and to account for his having a double-barreled gun, and taking it to the party, and leaving it outside concealed ; and his own statement is by no means satisfactory. He was absent some three to five hours from the party, and in his statement said he had gone to sleep in a fence corner after trying to see a woman of easy virtue, who was not at home, and could show by no one who told him that she was not at home. The night was very cold. On the whole, we think he got off well by the recommendation to mercy, and

Wadley, Jones & Company vs. Jones. bis consequent imprisonment for life, and we decline to interfere.

Judgment affirmed.

WADLEY, JONES & COMPANY, plaintiffs in error, vs. HENRY

P. JONES, defendant in error.

55 329 67 533 70 608 84 402

1. When there is no cause of action at the commencement of suit, there can

be no recovery, although one accrue, respecting the same subject matter,

while the suit is pending. 2. On a bill brought by a partner against his copartners for account and

settlement as to a branch of the business which had been discontinued, and in respect to which the partnership had been dissolved, and also for a share of profits in a second branch of the business, not discontinued but in active progress, and in respect to which the partnership still subsisted, the jury having found, in effect, (and this finding being supported by the evidence) that the suit, when commenced, was groundless as to both branches of the business, a verdict in complainant’s favor for a share of the profits which, pending the suit, accrued from the latter branch, is illegal; more especially as the bill did not seek, nor the verdict provide for, a dissolution of the subsisting partnership, a final settlement of the accounts, a discontinuance

of the business, or a disposition of the assets. 3. A verdict against all of the defendants, which, as to some of them, is wholly

unwarranted by the evidence, should not stand. 4. In a suit against copartners for a share of past profits, the verdict should

be against those only who have received more than their proportion, unless

some reason appears why the others should refund or contribute. 5. When, by common consent, all the members of a partnership charge cer

tain of their number with the exclusive management of the business and with the collection and disbursement of all revenues, agreeing that the managing partners shall pay over to each of the others, separately, his share of the profits when dividends accrue, each member may sue separately, at law, for unpaid dividends, and there is no occasion for resorting to equity; but whether the suit for dividends be in one forum or the other, it must be brought in the county where the managing partners reside, as they alone

are the real debtors, and the only necessary parties defendant, 6. Mere moral justice will not uphold a verdict. Courts administer legal

justice, which has relation, not to the end only, but also to the means, and involves exemption from suit till there is a cause of action, and location of suit in the proper county, with full and fair opportunity for trial before the tribunal which the law appoints to take cognizance of the case.

VOL. LV. 22.

Wadley, Jones & Company vs. Jones.

Actions. Partnership. Verdict. Jurisdiction. Venue. Joint and several obligations. Before Judge Gibson. Burke Superior Court. May Term, 1874.

Reported in the opinion.

J. J. JONES; CARSWELL & DENNY, for plaintiffs in error.

W. W. MONTGOMERY; JAMES S. Hook, for defendant.

BLECKLEY, Judge.

Concede to the complainant the position that he claims for himself; treat him as a partner by succession to his father, through purchase of his father's interest, and through recognition and acceptance by all the other members of the firm. Concede, also, that there was a firm styled Wadley, Jones & Company, and that it had, originally, two branches of business, a copartnership lumber business, and a copartnership railroad business. Still, we think the complainant was not, in this suit, entitled to the verdict which the jury rendered in his favor. The lumber business had been discontinued, , and, as to it, the firm had been dissolved long before the complainant filed his bill. The railroad business was still in progress. As to it, there had been no discontinuance or dislution. The bill covered the entire subject matter of the former business, and sought, in respect to it, a final account and settlement; but it had no such scope as to the latter business, being restricted to the complainant's due share in the net profits which had accrued therefrom, leaving the business to go on as it had done before.

1. It is a rule of law to which there is, perhaps, no exception, either at law or in equity, that to recover at all there must be some cause of action at the commencement of suit. With an existing cause to found upon in the beginning, in many cases matters arising pending the action, even down to the time of trial, may, under proper pleadings, be brought into the judgment or decree. But there are reasons of public

Wadley, Jones & Company vs. Jones. policy, as well as of private justice, why there should be no needless haste in fomenting litigation, and why people who are in no default and have committed no wrong should not be summoned before the public tribunals to answer complaints which are groundless.

2. In the present case, the jury evidently disallowed all the complainant's demand for moneys arising out of the lumber business. They found, in effect, and, under the evidence, rightly found, that that business was fully accounted for. It is plain, also, that as to the railroad business, the verdict embraces only one partner's equal share in the one dividend of profits; and that dividend, according to the evidence, accrued and became subject to distribution among the several partners while this action was pending. The verdict puts an unmistakable negative upon every charge in the bill that imputes default to the defendants or any of them. And that negative is well justified by the evidence.

3. The verdict is against all of the defendants, and if otherwise unobjectionable, that alone would be cause for setting it aside; for, as against the Jones defendants, there is no evidence upon which to charge them with any part of the complainant's share of the dividend in question, even had it been due at the commencement of suit.

4. The evidence shows that by arrangement among all the copartners, the defendants, Wadleys, (M. & D. Wadley,) were to manage the railroad, collect its revenues, pay expenses, and after discharging certain debts, turn over, out of the net profits, from time to time, to each of the other partners, his equal share. It sufficiently appears that complainaut's father, while a member of the partnership, assented to this arrangement; and no discontinuance or modification of it is shown. The Jones defendants have not overdrawn. They each re ceived from the Messrs. Wadley, out of this dividend, the equal share to which they were respectively entitled. They have bad nothing to do with complainant's share. No cause is shown why they should refund, or contribute; and they are under no obligation, legal or equitable, to stand bound for

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