Foster v. Thomas

26 Ga. 290

Opinion

By the Court.

Lumpkin, J.

delivering the opinion.

For myself, I am not prepared to say, that I should have granted a new trial in this case. Still, the presiding Judge has seen fit to do so. And if he is dissatisfied, we do not feel constrained, by the proof, to control his discretion.

The execution is standing open. Not a dollar is shown to have been paid upon it. There is testimony as to its having been arranged. How arranged? This expression refers probably to the transfer of the fi. fa. by Thomas to his creditor, in part payment of his own debt, and does not prove satisfaction by the defendant.

Mr. Thomas, the plaintiff,- said it was settled, and paid his attorney his fee. This he was bound to do when he traded the claim to a third person, whether the money had been collect ed or not. Indeed, he had no right to receive the money aftér he had transferred the execution. And it does not appear but that this conversation was after the assignment by Thomas, the original plaintiff. Of course, nothing said by him, after he had parted with the demand, couldbe evidence in the case, to bind the holder. There is confusion and uncertainty about the matter, and anew trial, therefore, will not hurt. Who is controlling the case? For whose benefit is the collection of the fi. fa. sought to be coerced ? Thomas or his assignee ? The Court needs more light, perhaps, upon this controversy.

Judgment affirmed. .