McDougald v. Banks

By the Court. Nisbet, J. delivering the opinion. Questions of very grave moment are raised on this record, growing out of the corporate character of the proprietors of the Columbus Wharf Lots. Col. Benning having Avaivod them, however, in the argument, this Court expresses no opinion upon any of them. [1.] The Court, as we vieiv the matter, did not err in deciding that the pleas Avere not regularly filed. Under no rule of practice were they regularly in. Indeed, to no legal or practical intent, had they been filed. The cause seems to have been several years in Court, and was on trial after the appeal. [455] The plaintiff had opened and concluded his case. Then it was that the Court was called upon to say : 1st. Whether the plea proposed to be read by the counsel for the defendant, had been filed. Mr. Devon, who was original counsel for the defendant, (Col. Benning having been only a few minutes before taken into the case,) stated that the plea had been made out by him for six months, and had been in his desk in Court, since the beginning of the term; that there were other casos in Court against Mrs. McDougald, as administratrix, in which Mr. Dougherty was concerned, and that he had announced to him that this -plea (plene administravit praster) was pleaded and relied upon in all the cases against her, and that he considered this, notice to him of the filing of the plea in this case; and that he, Devon, considered the plea filed. Mr. Dougherty stated that he had not had notice of the plea, but did not say that he did not hear Mr. Devon’s announcement. I cannot determine from the bill, whether Mr. Devon’s announcement was at the term preceeding the trial term of this cause, or during the then pending term. Let it be taken most favorably for him, as being made at the pending term, and we cannot rule the plea to have been filed, or any proper notice to have been given, that the defendant would rely upon it. The filing must be effected by a deposit of the plea in the Clerk’s office, and in no other way can it be done. It is filed for inspection, and it cannot be inspected without filing. A plea may be written out in time, and notice of the party’s intention to rely upon it duly given, and no facility be afforded to the plaintiff for preparation to contest it. An announcement in the hearing of opposing counsel, such as was made by Mr. Devon, is not notice of a plea — he must have notice, not that the defendant will rely upon a given defence, but of the'defence itself. There is no evidence that Mr. Dougherty ever saw this plea until counsel proposed to read it on the trial — a plea, involving the settlement of a large estate. ■ The Court, secondly, was asked to permit the plea then to be filed, and refused the request. We do not see how he could do otherwise. No diligence had been used by the defendant; [456] the case was in the last resort, and the canse had been submitted to the Jury by the plaintiff. The application was to the discretion of the Court. We cannot say that his discretion was abused. It was not an application even to amend the pleadings, for the defendant had filed no plea. The case was only not in default by the appearance of the party. The result of granting the request of Mr. Benning, would have been a continuance, in the face of an utter absence of all diligence on the part of the defendant, when the cause had been in Court for several years; 'or a trial without the opportunity of contesting the plea. There could be no equity in putting the plaintiff upon an alternative so oppressive. The rules of Court would have been wholly disregarded. The administration of the law is most effectual — indeed can only be just — when the rules of practice are observed. [2.] We also think, that Dozier Thornton was a competent witness. He was offered to prove the agreement among the members of the Wharf Cómpanyj that the Wharf Lots should be rented annually, and that each proprietor should be entitled to receive from the lessee, his proportion of the rent; also to prove that McDougald in his life, had rented the property for a year, under this arrangement. He, the witness, was one of the company, owning a part of the property and entitled to his proportion of the rent from the estate of McDougald. We do not think that he was incompetent from interest. According to the agreement among themselves, McDougald being one of them, each member of the company became the creditor of the lessee for his proportion of the rent, which he was entitled to collect on his own account. The lessee, in this instance, is proven to have had notice of this agreement. When, therefore, he rented the common property, he entered into a contract with each proprietor to pay him his proportion of the sum agreed upon for the rent of the whole, to be regulated by the number of shares which he held in the partnership. Eor this seems to have been a partnership founded upon real estate, held jointly by a number of gentlemen. Such an agreement among the partners, it was competent for them [457] to make, and when made, it was binding upon them all. For it is competent for partners to agree among themselves as to the manner in which the partnership property shall be used. It is competent for them to enter into' new articles and_arrangements for the government of the concern, which are obligatory inter sene. Story on Partnership, §192. 2 Bligh. R. 271, 297, 298. 1 Swanst. R. 460, 469. Turn. & Russ. R. 496, 523. Gow. on Partnership, p. 9 & 10, 3d edition. Upon a contract being made then,junder the agreement between these partners with McDougald, for the lease of these wharf lots, the legal title to his proportion of the rent vested in each proprietor. It was as though separate contracts had been made with each, and each partner had a right to sue for his share of the rent. Such being the state of the case, I do not -see how Thornton, who is entitled to sue for his proportion of the rent, can be interested in the event of a suit by Banks for his proportion. Banks and Thornton are separate creditors of the same debtor, for rent due, for land which each owns, and which for convenience, has been converted into partnership stock. No matter what were the original articles of partnership, the partners having consented to this mode of renting the property, the consent bound them, and it is not with the renter, himself a partner, to deny his obligation to pay. The verdict in Banks’ suit could not be evidence for Thornton in a suit for his rent; he could neither gain nor lose by the event of Banks’ suit. He would stand as would any other creditor —upon his contract with MoDougald — and the recovery of Banks would be a discharge of MoDougald to the extent of thatmecovery. It is true, that Thornton occupies the same situation, relatively, to McDougald, that Banks occupies, for whom he is called to give evidence, and may be presumed to he under á strong bias in his favor; but he is, notwithstanding, a competent witness, unless interested. His identity of situation goes to his credibility, and not to his competency. 1 Philips’ Evid. 2d edition, p. 47, note 84, page 89. [3.] The Court was requested to instruct the Jury, that the lease of McDougald being by parol, it was void by the Stat [458] ute of Frauds, and therefore, they must find for the defendant. The Statute was not pleaded. It is a safe rule always, to plead the Statute. It is necessary to plead the section of that Statute relied upon in this instance. To the first section of the Statute, which makes void all leases, &c. for lands, made by parol, the second section makes exception of “ all leases, not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord, during such term, shall amount unto two-thirds part at least, of the full improved value' of the thing demised.” Prince's Dig. 914. The party plaintiff ought to bo warned of the defence of the Statute, that he may prepare to bring his case within the exceptions. Whether a lease is, or. not, within the exception, depends upon two facts, to wit: it must be for a term not exceeding three years, and the rent reserved by it, must be equal to two-thirds of the improved value of the premises. These are issuable facts, and unless by the pleadings they are admitted' not to exist, I do not see how the question of the Statute can be made without a plea, which ought not only to set forth the section which makes void parol leases, but which ought also to negative the coming of the case within the exceptions. It does not appear from the plaintiff’s declaration, that this lease was for more than three years, nor does that fact appear in the evidence; for it seems, from the proof, that MeDougald’s renting was for one year at a time. Certainly, it does not appear from the pleadings that the rent reserved did not amount to two-thirds the improved value of the lots. About that fact, there is no evidence whatever. These things being so, I am satisfied that the Court could not instruct as to the effect of the Statute on the case. To the extent that the proof and the pleadings go, to wit: to the extent of showing that McDougald’s lease was for a less term than three years, the case was within the exception. The other exceptionable fact, as to the amount of rent reserved, was not in any way before the Court or the Jury. See Cody vs. Quarterman, 12 Ga. R. 386. Let the judgment be affirmed.