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Fulcher vs. Mixon.

large interests, and was the proper claimant under the changes made in our law of husband and wife, by the act of 1866.

5. The act of 1853–4, Code, section 2251, saves this deed from being an estate-tail, and makes the interests we have construed it to convey to the several parties ; but if it had been an estate-tail, it would have created it in her; for the words, in trust for her benefit, and the appointment and deed to Boyd, the trustee, would have prevented the marital rights of the donor, the husband, from attaching, the deed being made by him.

6. On the trial of this case, so far as we can now forsee it, we think the main question will be as to the notice to this creditor and the failure to record this paper in three months. If he had notice of it, his rights as creditor, appear to us, to be worthless; if he had no notice or knowledge, and crerlited on the faith of this property, the failure to record the paper in time, will make the claimant's case quite doubtful. The judgment is reversed on the ground that the court erred in dismissing the claim.

Judgment reversed.

MARY A. FULCHER, plaintiff in error, vs. MICHAEL Mixon,

defendant in error.

This case turns on the same principles as the above, and is ruled in the same

way.

Richmond Superior

Claim. Before Judge TOMPKINS. Court. April Term, 1875.

Report unnecessary.

Hook & WEBB, for plaintiff in error.

FRANK H. MILLER, for defendant.

Dobbs vs. Prothro et al.

JACKSON, Judge.

This case turns upon the same questions decided in Mary A. Fulcher vs. James H. Royal, executor, and the judgment is reversed on the same grounds. The facts are the same, except that Mixon's judgment is dated in 1866, and the debt on which it was founded, in 1860.

Judgment reversed.

DAVID J. DOBBS, plaintiff in error, vs. WILSON PROTHRO

et al., executors, defendants in error.

Where suit is brought by exécutors against a legatee under the will of their

testator, on an account for money alleged to be due, he cannot plead as a set-off the amount of his legacy, unless he shows the estate to be solvent, and in a condition to be distributed.

Executors and administrators. Legacy. Set-off. Before Judge Knight. Cobb Superior Court. March Term, 1875.

This case is reported in the decision.

IRWIN & ANDERSON, for plaintiff in error.

W. T. & W.J. WINN, for defendants.

WARNER, Chief Justice.

The plaintiffs, as the executors of Evan Prothro, deceased, brought their action against the defendant on an account for $370 00, alleged to be due them as executors aforesaid. The defendant admitted the indebtedness as claimed by the plaintiffs, but pleaded as a set-off that the plaintiffs, as executors of Evan Prothro, were indebted to him, in right of his wife, who was a daughter and legatee of Evan Prothro, under hi will, a much larger amount than plaintiffs' demand, as her legacy under her father's will, but the amount of the legacy

VOL. LV, 6.

Dobbs vs. Prothro et al.

claimed to be due the defendant's wife, is not alleged in his plea. On the trial of the case, the jury, under the charge of the court, found a verdict for the plaintiffs for the amount of the account sued for. The defendant made a motion for a new trial on the ground that the verdict was contrary to the evidence, contrary to law, and for alleged error in the charge of the court. The motion for a new trial was overruled, and the defendant excepted. In view of the evidence contained in the record, there was no error in the charge of the court to the jury, or in overruling the motion for a new trial. The court charged the jury, in substance, that to entitle the defendant to set-off the legacy claimed under the will of Evan Prothro against the plaintiffs' demand, he must plead and prove that the estate of Prothro was solvent; that there were no debts to be paid; that there was no reason why the executors should recover the money sued for but to pay it over to the defendant as a part of his distributive share; that if all these facts have been shown by the defendant in a tangible form so that you can take hold of them, then you will find for the defendant, otherwise you will find for the plaintiffs. The evidence in the record does not make out a clear prima facie case which will authorize the defendant to interfere with the due administration of the testator's estate by the plaintiffs, as his executors, by claiming his legacy as a set-off to their demand against him. There is no evidence as to the amount of the defendant's share as a legatee in right of his wife under the will of Evan Prothro, and the witnesses for the defendant state that they do not know of any debts against the estate; the testimony upon this material point in the case is merely of a negative character, whereas, it is shown by the evidence of one of the witnesses for the plaintiff that there is a suit now pending against the estate. The general rule is that a legatee under the will of a testator, is not entitled to be paid his or her legacy without the assent of the executor, or unless the estate in bis hands is in such a condition as that a court of equity will compel his assent thereto. The evidence in the record now before us does not make such a case as a court of

Finney vs. Cadwallader.

equity would compel the executors of Evan Prothro to assent to the payment of the defendant's legacy, which he claims under the will of their testator.

Let the judgment of the court below be affirmed.

NEWTON S. FINNEY, plaintiff in error, vs. John L. CAD

WALLADER, trustee, defendant in error.

55 75 86 729 88 312

55 75 61 191 63 759 66 176 75 232 83 219 84 486

1. If a parol contract embrace many particulars on either side, and there be

part performance on both sides, when one party seeks by action at law to take the fruits of his own part performance, the other party may recoup his damages for any breach by the plaintiff of other stipulations in the same

general contract. 2. In assessing the damages, care should be taken that they be not speculative

or too remote. Damages claimed for not making the defendant agent of a line of schooners never established, and for not making him general manager of a bank never created or opened, are too uncertain and remote. But proximate damages which he sustained by the plaintiff's failure to pay storage according to contract, and to furnish a given amount of patronage in certain years to the defendant's wharf and lumber shed, at a fixed rate, and by being excluded, in violation of the contract, from the use of the wharf when he could have made it profitable to himself by receiving thereat certain specified cargoes which were consigned to him, may be re

couped, if clearly and definitely proved. 3. On general demurrer to a plea or motion to strike the same, if any part

of the plea be good in substance, the demurrer or motion should be overruled, but the court may, and ought to, direct looseness and uncertainty to be cured by amendment; and if the defendant refuse to amend in that respect, the plea should then be stricken as if standing upon special de

murrer.

Recoupment. Damages. Pleadings. Demurrer. Amendment. Practice in the Superior Court. Before Judge HARRIS. Glynn Superior Court. November Term, 1874.

Cadwallader, as trustee in bankruptcy of Dodge & Company, instituted proceedings to foreclose a mortgage executed by Finney, to secure the payment of a promissory note made by N. S. Finney & Company, dated June 1st, 1870, payable two years after date, to the order of Dodge & Company, for

Finney vs. Cadwallader.

$4,000 00, bearing interest at seven per cent., upon which was a credit of $1,089 32. To the rule nisi Finney pleaded as follows:

At the time of the commencement of this suit Dodge & Company were indebted to him in the sum of $9,930 00, on account of their failure to comply with certain agreements entered into by them, which constituted the inducement to defendant to accept the loan of $1,000 00, secured by the mortgage aforesaid. The contract out of which such undertakings arose, was, in substance, as follows:

Finney was to erect the two-and-a-half story building described in said mortgage, in which Dodge & Company were to have two rooms as offices, free of rent for two years, or until said note for $4,000 00 was paid. He was to entirely withdraw from the business of buying and shipping yellow pine lumber, in which he was then engaged ; to give them the benefit of the good will of his business and the exclusive right to pass lumber over his wharf and mill-shed.

In consideration of which Dodge & Company agreed to make him the loan on said note, secured by said mortgage.

Also, to establish a line of schooners between New York and Brunswick, Georgia, for the transportation of freights, to advertise the line at both ends of the route, and to make said Finney, or such firm as he might organize, sole agent of the same at Brunswick, with the right to the usual commissions etc., on the business done.

Also, to ship over his wharf and mill-shed, during the first year of their business, not less than eight million feet of lumber, and during each subsequent year not less than ten million feet, on which he was to be paid twenty-five cents per thousand feet, to be credited on said note and mortgage. Should said Dodge & Company desire to store lumber in said millshed, they were to pay the same storage as was charged in Savannah, also to be credited as above indicated.. But said wharf and mill-shed were to be kept unobstructed by lumber when said Dodge & Company had no vessels in port,

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