Dunning & Tuttle v. Stovall

30 Ga. 444

• Court: Supreme Court of Georgia
• Decided: January 15, 1860
• Status: Published

Opinion

By the Court.

Lumpkin, J.,

delivering the opinion.

As the plaintiffs did not sue upon a special contract, the presumption is, that the contract was completed when the last item in the bill of particulars was charged. They rely upon that and they must abide by it. They will not be permitted to prove any thing to the contrary, unles it was averred in the writ. We do not think the late statutes making open accounts bear interest from the first day of January of the year next following, and that the Statute of Limitations shall not begin to run until that time, applies to the lien laws.

Ought the amendment in this case to have been allowed ? The plaintiffs proposed to abandon the lien and convert the proceeding into an ordinary action against the defendants as trustees for Mrs. Caroline Hearing and children, for a dwelling house, materials found by the plaintiffs, for the benefit of the trust estate.

And why not? We can see no objection to it. Whether when there are trustees, the Act of 1856 intended that the cestui que trusts should be made co-defendants, is not altogether clear. But whether this be so or not, or you are only required to name them as you do the trust property, still we see no insuperable objection to the allowance of the amendment.