Cheney v. Dalton

46 Ga. 401

• Court: Supreme Court of Georgia
• Decided: July 15, 1872
• Status: Published

Opinion

Montgomery, Judge.

1. It is too late, in our practice, to object to amendments to pleadings upon mere technicalities. The legal effect of the lost note and the substituted copy sued on are identical. No new and distinct cause of action — no new and distinct parties. The amendment was properly allowed : Code, 3429, 3430.

2. Whether Dorough should have paid the taxes on the note after the rescission of the land trade, and before delivery of the note to him, depends entirely on whether the intention of the parties was to pass the title of the lost note to Dorough at the date of the rescinding contract. There was evidence to show such was not the intention, and the jury have so found. Indeed, it would have shown very little shrewdness on Dorough’s part to divest himself of the title to the land and take the risk of the note having passed into other hands and been by them collected. True, he might have collected the amount from them, if they were able to pay, but suppose they were not ?

Judgment affirmed.