Durham v. Sessions

34 Ga. 282

• Court: Supreme Court of Georgia
• Decided: June 15, 1866
• Status: Published

Opinion

Harris, J.

The record presents only one question for our determination : Was Judge Clark right in refusing to dissolve the injunction granted at the instance of Sessions? We think there never was a clearer proposition. The equity of the bill was not sworn off: had it been, in the strongest terms, it is not a matter of right that the injunction should then go. At all times, and in all cases, the retaining or dissolution of an injunction must, to attain the end of a Court of Equity, rest in the sound discretion of the Judge of the Court in which the cause is pending. There are many cases ip which a thorough investigation of the facts in controversy should be had before a special jury, before dissolving the injunction in the cases; and this is palpably one of them: it is idle, — it is more than idle — to talk of a party having equitably performed his contract, who, (after delaying, from day to day, payment in a currency hourly depreciating) when a dismal catastrophe occurs, itself indicative of the certain, aye, sudden death of the Southern Confederacy, is found borrowing of a Mr. Brown a large amount of Confederate treasury notes — having become by the surrender of Genis. Lee and Johnson worthless — saying, at the time, “ I want to settle with Sessions now.”

If the contract was changed, from a specie basis, to,one to be paid in currency at stated times, the party failing to pay must bear the depreciation. Whenever this case shall be tried by a jury, we suggest that the Circuit Judge call the attention of that body to the forcible opinion of Judge Jenkins, in the case of Smith vs. Bryan, reported in 34 vol. Ga. R., p. 65, as embodying the proper equitable rule to be applied by them in the adjustment of the several payments alledged to have been made.

Sessions, in the testimony in the case, is said to be a plain, weak-minded man; and, whilst it is not the office of a Court of Equity to act as guardian of men in this class, in making their contracts, the principles which constitute the jurisdiction it exercises, forbid that, when the case is brought before it, it should allow ignorance or imbecility to be overreached.

Judgment affirmed.