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Thrasher, et al, vs. Partee and wife.

of slaves belonging to the wards, and applied the same to his He received other sums with which he is chargeable. He charged them for board and personal expenses (as appears by his exhibited returns) which they say is illegal. Lane is now involved, and has no property except that aforesaid, (which is insufficient to pay what he owes the wards) and they can rely only on this, because the securities on the guardian's bond, Hugh J. Oglesby and Charter Campbell, are insolvent.

Lane is sued in various cases, and judgments have been obtained against him for a large amount. Besides this, he, on the 26th of April, 1866, mortgaged to Early W. Thrasher three thousand acres of said lands, bought and paid for with the trust funds aforesaid, to secure to Thrasher the sum of twenty-six hundred dollars. They charge that Lane is combining with Thrasher and others unknown, etc., to dispose of his property so as to defeat the claim of complainants. They pray for injunction against Lane and all creditors, and the sheriff of said county to keep the lands in statu quo until an account may be had with Lane, and a decree made for the amount due complainants, and that their claim shall be paid out of such property to the exclusion of Lane's other creditors. They also pray discovery from Lane, and for such other further relief as they may need, etc. Judge Augustus Reese (then Judge of the Ocmulgee Circuit) granted an injunction as prayed for, restricting it to the property bought of Stallings' executors.

Thrasher, in the same paper, demurred generally, and also answered the bill. By the answer he says that the bill shows that at Stallings' death, Lane owned three thousand dollars over and above his debts; that the charges in the bill may be all true, except as to combination and fraud. But he said that his mortgage was bona fide taken to secure the loan of money; that he had no notice of any claim by complainants on Lane, or his inability to satisfy them, and insisted that he could not, in law and equity, be postponed till their claims are paid, especially since the insolvency of Lane and his securities on his guardian's bond (if they be insolvent) is the re

Thrasher, et al., vs. Partee and wife.

sult of the war, for which has not responsible, etc. Neither the bill nor answer, shows the date of the note or mortgage held by Thrasher.

Subsequently, he filed an amended answer, averring that Lane purchased the eighteen hundred acres of land (to which the injunction applied) on the 7th December, 1858, and took from Stallings' executors title in fee simple to himself individually, and soon after, or about that time, applied for letters of guardianship over said wards and their property; was required by the ordinary of said county to give bond in the sum of $52,000.00; that, at March Term of said Court, 1859, the jury found a verdict in accordance with the decision of the ordinary, and Lane never gave bond as required nor received letters of guardianship on said estate until the 2d day of April, 1860.

Thrasher moved, before Judge Vason (then presiding) to dismiss the bill for want of equity, and to dissolve the injunction. Nothing was before the Judge except the bill and answer. The motion was overruled and Thrasher excepted.

BAUGH & THRASHER, for plaintiffs in error.

N. G. & A. G. FOSTER, for defendants in error.
HARRIS, J.

Dawson B. Lane, the farther of Mrs. Partee, was the executor of the will of Wm. Stallings, her grand-father, and by which will considerable property was devised to her, and he made the testamentary guardian of the person and property so given to his children. Lane having failed to pay over the property so devised to this daughter, he having mismanaged and wasted her property, and become embarrassed, if not insolvent, this bill after her marriage with Partee, was filed in their joint names to trace a part of the proceeds devised to Mrs. Partee, and which had been invested in lands by Lane in his own name, and on which lands the defendant, Thrasher, had taken a mortgage to secure a large loan of money made by him to Lane.

Thrasher, et al., vs. Partee and wife.

Thrasher answered the bill; averred the bona fide character of his loan to Lane, and that he took the mortgage on the land for his security, without notice of any trust at the time, in said land for Mrs. Partee. Upon the filing this answer, his counsel moved to dismiss the bill for want of equity. This motion was properly refused. The bill, if not making a case for a Court of Equity, should regularly have been disposed of by demurrer, though oftentimes during the progress of a trial a bill is dismissed, on motion, when it becomes apparent that the complainant is not entitled to relief. It was not contended that the bill had no equity, but the motion proceeded from the misconception that the Court could decide that complainants were entitled to no discovery, and no relief whenever a full answer was filed.

Another motion, however, was made by Thrasher's counsel, which we are of the opinion the Court below should have acceded to. The injunction restraining the levy and sale under the mortgage fi. fa., should have been removed as there was no allegation in complainant's bill which imputed bad faith, or fraud, or notice, or knowledge of any trust in Lane for Mrs. Partee to Thrasher at the time, or previous to his taking the mortgage on the land, alleged to have been purchased with the proceeds of property devised by Stallings to Mrs. Partee; and Trasher, having, by his answer, fully denied all notice or knowledge of any trust and (sworn) that the transaction was bona fide, and upon a valuable consideration, we can perceive no sufficient reason for retaining the injunction to the hearing.

Judgment reversed.

Conner vs. Southern Express Company.

MARTIN CONNER, plaintiff in error, vs. SOUTHERN EXPRESS COMPANY, defendant in error.

By the act of 18th April, 1863, express companies could effectually be sued by service of the writ on any one of the agents of the company in the county in which such suit was instituted. The act of the 23d February, 1868, to perfect service on express companies, provides that where its president or chief officer resides in this State, it shall be the duty of the company to post in a public or conspicuous place, at each office where it does business, the name of its president or chief officer on whom service can be perfected in this State. These acts construed together, seem to regard service on an agent in the county where suit is instituted as incomplete, imperfect, where the president or chief officer resides in Georgia and his name has been posted as directed by the latter act.

The suit here begun by service of an agent at Columbus in October, 1866, was capable of being perfected by a personal service of a copy of the original writ and process, on such president or chief officer whose name had been so posted.

The plea of the defendant below, setting forth the facts that the president or chief officer of the company resided in Augusta, Ga., and that his name had been conspicuously posted in the office of the company at Columbus, was admitted by plaintiff, without proof, to be true. The Court did right in overruling the demurrer to that plea, but his judgment "that plaintiff, by such plea, was barred and defeated in his said action," was erroneous.

A suit having been begun by service on an agent at Columbus pursuant to the act of 1863, the Court below should simply have required the plaintiff to perfect service on the president or chief officer of the express company, whose name had been conspicuously posted, &c., according to the act of 1866, and should have given plaintiff time for such purpose.

Case. Demurrer. Decided by Judge WORRILL. Muscogee Superior Court. May Term, 1867.

On the 23d of October, 1866, Conner brought case against the Southern Express Company, a corporation doing business and having an office in said county, for breach of its contract, as a common carrier, made in October, 1865. The defendant plead to the jurisdiction, upon the ground that its chief officer did not reside in said county but in the county of Richmond in said State and averred that it had, in accordance with the statute in such case provided, posted in a public and conspicuous place, at each of its offices, the name of its president or chief officer on whom service could be perfected.

Conner vs. Southern Express Company.

This plea was demurred to. It was admitted in the argument below and here that the company was incorporated by the Superior Court of Richmond county, Georgia.

The Court overruled the demurrer, holding that the plea barred and defeated plaintiff's action, and Conner assigns that judgment as error.

Gen. H. L. BENNING, for plaintiff in error.

MOSES & GARRARD, for defendant in error.

HARRIS, J.

The defendant in error is a corporate body, and as such, under the general provisions of the Code, touching service on corporations, could have been sued in the county where it had an office and agent, unless in the act of incorporation a locality had been given to this legal entity, or by distinct enactment, the right of suit against it elsewhere, had been given. But the legislature, for some cause which does not appear on the face of its legislation, and which cannot be collected with any certainty, by any course of reasoning we might employ, thought proper to prescribe specially for service on express companies; thus, by the act of the 18th April, 1863, a suit against such a company, was made effectual by service of a copy of the original writ by leaving it with any agent of any express company in any county in which such suit was instituted.

The facts in this record show that the suit of Conner was instituted in the county of Muscogee, and a copy of it served on the agent of the Southern Express Company, residing in Columbus.

Had there been no other legislation on the subject of service, it is very clear that, under the act of 1863, the plaintiff had complied with the requirements of that act. The legislature, however, considering that, possibly, much injustice might be done to express companies, and large judgments obtained against them as common carriers without full and ample knowledge of the institution of suits against them for damages under the act of 1863, by allowing judgments to any amount to be rendered against such companies, upon service

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