Melson v. Dickson , 63 Ga. 682 ( 1879 )

Jackson, Justice.

This was an action of trespass quare clausum fregit.. where the jury found for the plaintiff, and the defendant moved for a new trial, which was refused, and he excepted.

1. The brothers and cousins of the counsel, whose contract entitled them to part of the recovery, and who, under pur Code, have a lien for their fees on the suit and the judgment, should have been stricken for cause. Under the English law no such fees are allowed to counsel, and therefore kinsmen of the counsel are not incompetent jurors. Hence the dictum in Bacon’s Abridgment. 5 Bacon’s Abridg. title, Juries, p. 354. But in our state the law is totally changed, and the reason and spirit of the dictum ceasing, it has no authority here.. They were as much interested and as partial as if of kin to the plaintiff himself, if the fee were half the recovery, and probably it was; at" all events, they were not onmi exceptions mayores if the fee were any part of the recovery ; and this it was proposed toprové.

The defendant had the right to a panel of twenty-four from which to strike — all twenty-four impartial men. 7 Ga., 139 ; 15 Ga., 39 ; 59 Ga., 145. He was denied this right and was forced to exhaust four strikes upon two brothers and two cousins of the opposing parties who had an interest, a pecuniary interest, in the verdict and judgment they were pressing to obtain. The denial was erroneous and hurtful. A big part of the battle is the selection of the jury, and an impartial jury is the corner-stone of the fairness of trial by jury.

2. The Code provides that a tort may be set off against a tort, and we have so held. Code, §3261 ; Ingram vs. Jordan, 55 Ga., 356; 59 Ga., 610. This suit is for a tort; the plea which was. stricken is for the conversion of personal property, equivalent to trover in the old form, or the statutory remedy in our Code. It should not have been stricken, because trover is a tort as well as trespass. See also 56 Ga., 353 ; 49 Ga., 491; 30 Ga., 121.

3. Equity will always interpose to set off a claim ex conbracfu, where a creditor is about to be mulct in damages by an insolvent debtor, and viceversa. 55 Ga., 356; "Waterman on Set-off and Recoupment, §§395-6, 408. So in this case, on a bill properly filed, the notes held by defendant against plaintiff would have been set off by a court of equity. But under our Code the party need not go into equity’s peculiar forum, but may assert all equitable rights at law on an equitable declaration or plea substantially setting out the facts necessary to be alleged in a bill. Code, §3082; 45 Ga., 13-17-331, etc., etc.

This plea does that substantially. It alleges insolvency and consequent inability of plaintiff to pay these notes. It would be wrong, therefore, to let him annoy plaintiff with any judgment, unless he recovered more than he owed, and for any amount except the surplus after paying what he owed defendant. This jffea therefore should not have been •stricken.

In my own view of the law the bond for title and the rent note, though on two pieces of paper and separate instruments, were cotemporaneous and made but one contract. They should be construed together. So construing them the meaning is plain. The land was sold ou the bond for titles but unless the terms were complied with, the title was to remain in the vendor and the vendee was to be his tenant. 'The rule' of construction is to give both papers such a meaning that both may stand and neither fall — ut res magis valeat quam pereat. So construing them, the meaning is clear, and when the terms of the sale were not complied with the relation of landlord and tenant was established by the note as part of the contract; and the tenant will not be heard to dispute the landlord’s title. The contract was executed, the papers'signed and delivered, and the tenant put in possession under them. lie cannot dispute the title which put him in or any part of that title. He seeks to do so here by proof of his own fraud — that he made the rent note to cheat his creditors. It is he that sets up this fraud to overthrow the contract which he made and executed. This he cannot do. ■

The truth is that this case seems to us to be covered all over by the case of Tufts vs. Dubignon, 61 Ga., 322; and that if that case be law, and we so held then and so think now, then this verdict cannot stand.

4. But the plaintiff has clearly mistaken his remedy. This was no trespass qua/re clausum fregit. The defendant entered under legal process. The papers in the distress warrant case were all apparently right, and authorized him to enter. He broke no close of the plaintiff when he entered, and used no violence. If the plaintiff says that he sued out the proceeding under the distress warrant without foundation, but oppressively and maliciously, he has his remedy; but that remedy is not an action of trespass quare clausum, fregit, but a special action on the case for the unfounded and malicious proceeding under form of law. And so this court has held. Riley vs. Johnson, 13 Ga., 260; Sewell vs. The State, 61 Ga., 496.

Independently, therefore, of all other objections to the verdict and judgment, this must conclude the plaintiffs right to recover under this remedy; and we cannot see how he would be much helped, if he tried the other and only remedy given him. The facts would seem to show probable cause, and set-offs, legal and equitable, would render recovery, it would seem, hopeless.

Judgment reversed.