Gilmer v. Allen

9 Ga. 208

• Court: Supreme Court of Georgia
• Decided: November 15, 1850
• Docket: No. 43
• Status: Published

Opinion

By the Court.

Lumpkin, J.

delivering the opinion.

[l.j We are satisfied that there is no Statute in this State authorizing an agent to give a forthcoming bond for property levied on by attachment. Still, we think that the Court erred in sustaining the demurrer to the writ.

[2.] The defendant, by demurring, admits the ability of the plaintiff to sustain all the allegations in his declaration, by proper proof. As, for instance, if the demurrer is to a writ, as being within the Statute of Frauds, it concedes that the plaintiff can prove the promise, in accordance with the provisions of the Statute.

[3.] In other words, the plaintiff is not obliged to spread out his proof upon the record. If the rule was otherwise, the defendant, by his demurrer, might cut off the plaintiff’s testimony, however sufficient it might be to make out his case.

[4.] The declaration alleges, that the bond was executed by the principal through his agent. This averment is sufficient, and will entitle the plaintiff to recover, provided it be sustained on the trial by competent proof.

Let the judgment be reversed.