Humphries vs. McWhorter & Brightwell. ed in charging the jury, that, if they should find from the testimony, that, by the contract between Monday and Bloodsworth, Monday was to furnish the materials, and Bloodsworth was to make the buggies, and that Bloodsworth was to have one-half of what the buggies sold for as pay for his labor, this would not make them partners, and in that event they must find for the plaintiff. The Court ought to have charged the jury that if the contract was as testified to by Cox, and they should find that Monday and Bloodsworth were part owners of the buggies, and that, by special agreement, Bloodsworth had a right to put a price on the buggies, when they were done, and either party might then sell them, in that case, the sale made by Bloodsworth was good, and the verdict should be for the defendant. Collier on partnership, §1217. If Bloodsworth had an interest in the buggies, and had power to sell by special agreement, the death of Monday could not affect his authority to sell. Judgment reversed. GEORGE W. HUMPHRIES, plaintiff in error, vs. McWHORTER & BRIGHTWELL, defendants in error. An endorser sued in the same suit with the maker of a promissory note, and residing in a different county, may waive the issuing of a second original and process, and his waiver will bind him. Affidavit of illegality, from Cass county. Decided by Judge TRIPPE, September Term, 1857. An action was brought in the Court below by the firm of McWhorter & Brightwell, against Charles H. Hamilton of Cass county, as maker, and George W. Humphries, and Lloyd Humphries vs. McWhorter & Brightwell. & Pulliam, of Fulton county, as endorsers, to recover the amount of two promissory notes. In that action the jury returned a verdict for the plaintiff, and a fi fa. issued upon that Judgment, which was levied on the property of Humphries. To the fi. fa. Humphries made an affidavit of illegality, swearing that he was advised and believed that the fi. fa. was proceeding against him illegally the judgment issued upon it being void as against him. After argument, this affidavit of illegality was dismissed by the Court. Counsel for Humphries then moved for and obtained a rule nisi to set aside the judgment rendered against him in the said action, on the following grounds: 1st. Because there was never issued against this movant any second original petition or process for Fulton county. 2d. Because this movant was never served with any copy process or copy petition. 3d. Because this movant never waived the issuing of any second original petition or its process against him, and never waived the service of any copy. To this rule the respondent answered that the original declaration for Cass Superior Court was filed, to which process was duly attached and service had upon the maker, and that the following acknowledgment was made and endorsed upon the original petition and writ. "Georgia, Fulton county, We hereby acknowledge due and legal service of this writ, and waive copy and copy process, and all other service by the sheriff, August 6th, 1856. [signed] Jas. Lloyd, A. C. Pulliam and G. W. Humphries." After argument the Court discharging the rule nisi, and refused to make it absolute. Humphries vs. McWhorter & Brightwell. Counsel for defendant then filed his bill of exceptions, say ing that the Court erred, 1st. In dismissing said affidavit of illegality. 2d. In discharging said rule nisi, and in refusing to make said rule absolute. OVERBY, BLECKLY, and HILL, for plaintiff in error. HAYGOOD, contra. By the Court.-MCDONALD, J. delivering the opinion. Although it appears that error is assigned on the decision of the Court on the affidavit of illegality, it is not insisted on in this Court. The argument, here, was confined to the judgment of the Court below on the motion to set aside the judgment. We think that the acknowledgement of service by the defendants, alleged in the declaration to reside in Fulton was sufficient to give the Court of Cass county jurisdiction as to them. The entire object of requiring a second original and process to issue when an endorser is sued, and resides in a county different from that of the maker of a promissory note, where the suit must be brought, is to assure the Court that the party has been served, by the proper officer, and that the party himself has legal notice of the suit. This object is fully accomplished by the acknowledgement of service by the parties in this case. The defendant was at liberty to waive a constitutional as well as a legal right in a matter of this sort. He did waive it, and must be bound by it. Judgment affirmed. Stancell vs. Pryor. RIAL STANCELL, plaintiff in error, vs. WILLIAM PRYOR, defendant in error. Words not actionable of themselves may be made so by averment and proof of a colloquium and innuendoes. Slander, from Walker county. Tried before Judge TRIPPE, at November Term, 1857. This was action of slander by Riul Stancell against William Pryor, for words spoken, &c. The words alleged to have been spoken, as laid in the declaration, were, "Rial Stancell stole my steel trap-nobody else knew where it was." Columbus F. Roberts, the only witness examined on the part of the plaintiff, testified, that late in the fall of 1854, he called at defendant's house on business; defendant told witness that he had lost his steel-trap; witness asked him if he suspected any person of taking it; he replied, "Yes, Rial Stancell is the only person who knew where it was; I told him where it was the other evening as we came from Brook's sale, and I have missed it from the place since I told Stancell where it was." The witness further testified that about six months afterwards, he and defendant exchanged a few words upon the subject, but the words he has forgotten, but recollects the impression left upon his mind was, that defendant was still charging plaintiff with having taken the steel-trap. That both conversations were commenced by defendant; the first conversation, at defendant's house, was before the bringing of this suit, but he thinks the second was afterwards: does not remember the words used on the last occasion, but recollects that they left him under the impression that plaintiff had taken the steel-trap. This is the substance of this witness' testimony. Plaintiff then closed. Defendant moved for a nonsuit, Stancell vs. Pryor. 1st. Because the words as laid in the declaration, had not been proven. 2d. Because the words proven are not actionable. The Court sustained the motion on the second ground. Plaintiff moved to continue the case, to enable him to prove, by the next Term of the Court, the words spoken, he having acted upon the belief that the testimony of Roberts (which was by commission) would carry the case to the jury. He further proposed to let the case go to the jury and let them determine the motives which influenced defendant in speaking the words as proven. Both of which motions the Court refused, and ordered a nonsuit, and plaintiff excepted. ALEXANDER, STANCELL & CROOK, for plaintiff in error. By the Court.-MCDONALD, J. delivering the opinion. The declaration in this case might have been amended by alleging a colloquium, that the defendant's steel-trap had been stolen, with suitable averments, that the words were spoken of and concerning the plaintiff, in reference thereto; and on proof of the said allegations with the words, the action might have been sustained. The Court below held that if the words as proven had been actionable, the declaration might have been amended, but we understood the decision to be, that the declaration could not have been so amended as to have sustained an action upon the words: words in themselves not actionable may be made so by avering a colloquium with suitable averments to apply the speaking to the subject. Judgment reversed. |