Bolton v. Duncan

Warner, Chief Justice. This case came before the court below on a certiorari from a justice court on the hearing of which the court sustained the certiorari. It appears from the return of the magistrate and the evidence in the record, that Bolton had sued out a distress warrant against Duncan on the following instrument, with the following entries thereon : “ By the first of October next, we, or either of us, promise to pay Turner & Bolton, or bearer, nine hundred pounds [104] of lint cotton, to class good ordinary, and to be delivered in Albany. January 15th, 1877. (Signed) Moses Duncan, Gus. Washington.” “ I transfer the within note to J. IT. Bolton, to do as he pleases with it, 16th March, 1877. (Signed) IT. R. Turner.” “Albany, Ga,, March 17th, 1877. For value received, I transfer the within note to N. E. Mercer, with all the powers vested in me as landlord, to take control of and act in any capacity as landlord, etc., and I arn to collect the rents and pay proceeds to him. (Signed) J. H. Bolton.” It also appears from the evidence in the record, that Turner & Bolton were co-landlords, and that in division of the rents, the note distrained on was given for rent of part of their lands, and was transferred, as appears by the transfer of Turner, to Bolton. The court below sustained the certiorari on the ground that the remedy by distress warrant did not lie in favor of Bolton, he having transferred and assigned the rent note on which the distress warrant was based. Whereupon the defendant in certiora/ri excepted. The indorsement of Bolton on the note was not an absolute, but a qualified indorsement. If he had made an absolute indorsement of the note, and had delivered it to Mercer, he would have become liable for the payment of it as such indorser, but it is evident from the terms of the indorsement that such was not his intention, nor the legal effect of it. Bolton retained possession of the note, was to control it, collect it, and pay the proceeds thereof to Mercer, so as to protect himself from liability. See Leitner vs. Miller, 49 Ga., 486. In view of the facts disclosed in the record, the court erred in sustaining the certiorari. Let the judgment of the court below be reversed.