Shaver v. McLendon , 26 Ga. 228 ( 1858 )

By the Court.

Benning J.

delivering the opinion.

It is admitted on all hands, that the plaintiff might recover on this bond and his offered proof, in equity. But what is there to prevent him from doing so in like manner at law.

I think, there is nothing. “Whenever” “a plaintiff or complainant shall conceive, that he she or they, can establish his her or their claim, without resorting to the conscience of the defendant, it shall and may be lawful for every such plaintiff or complainant, to institute his her or their action upon the common law side of the Court, and shall not be held to proceed with the forms of equity; any law or usage to the contrary notwithstanding.” Cobb Dig. 464.

This, as it seems to me, is an authority to the plaintiff to proceed at law in this case. I therefore, think that the Court erred in not admitting the evidence, to the mistake.

Judgment reversed.

Lumpkin J. concurring.