Miller v. Blitch

Jackson, Chief Justice. [This was a petition for certiorari, reciting the following facts: A. B. Miller and Mosell Miller gave to "W". H. Bliteh a note for $50.00, principal, dated June 12, 1883, and due October 1, thereafter, and on the same day gave a mortgage on certain crops and a black mule to secure the note. On December 4, the mortgage was foreclosed and the^. fa. levied on the mule. Defendants filed an affidavit of illegality on the following grounds : (1.) Because they did not owe Bliteh the amount the execution issued for or the amount for which the same was proceeding. (2.) Because the mortgage and note were signed and delivered to Bliteh béfore any debt was due by defendants to him; and at the time the mortgage and note were given, they were not indebted to Bliteh. (3.) Because Bliteh is indebted to them in the sum of $2.00. The case was returned for trial before the justice who issued the f. fa. Defendants proposed to amend by adding the following grounds in substance : (4.) Because Mosell Miller is the wife of A. B. Miller, and signed said note and mortgage as surety for her husband, and is not bound therefor. (5.) Because the note and mortgage were given to in [362] demnify Blitch against loss on account of advances, which were to be made to A. B. Miller, to the amount of $50.00 thereafter, and were made from time to time; the debt was really due on this account and not on the note, and a copy of it should have been attached to the foreclosure; and interest should be calculated only from the dates of such actual advances, and not from the date of the note. The justice refused to allow the amendment, as adding new grounds of illegality, without showing want of knowledge thereof when the original affidavit was filed. Judgment was rendered against defendants for $48.00, principal, with interest from the date of the note, and ten per cent attorney’s fees. Error was alleged in these rulings. The judge of the superior court refused the petition for certiorari, and petitioners excepted.]