Hargrove v. Webb & Allen

27 Ga. 172

• Court: Supreme Court of Georgia
• Decided: January 15, 1859
• Status: Published

Opinion

By the Court.

McDonald, J.

delivering the opinion.

The defendant appeared and pleaded the general issue at the appearance Term of the cause. On the appeal, the defendant proposed to amend his plea, by filing a dilatory plea as to one ofthe plaintiffs, viz: hisdisabilitytosuej and to amend it further by pleading to the contract, that it was void, be-r cause made by a free person of color, having one-eighth of African blood in his veins, who had not the written permission of his guardian to make said contract. The Court refused to allow the amendment, and the defendant excepted.

[1.] A dilatory plea must be filed at the first Term of the Court, and leave to file it on the appeal ought not to have been allowed; and if the party had filed it as a matter of right under the statute, the Court ought to have ordered it to be stricken out, on motion, as inadmissible. We pass no judgment on the question whether the plea could have been sustained, if it had been filed in time.

[2.] In support of the second plea, that the contract was void, the plaintiff relies on the Act of 1833, which declares that it shall not be lawful for any person to give credit to any free person of color, but on a written order of a guardian. Cobb, 1005. This Act was for iho protection of free persons of color from the designs of men, by whose arts and persuasions, they might be seduced into contracts of waste and extravagance. It was intended to throw about them and their property, the guard of the better poised judgment of a discreet guardian. A free person of color, without property, would scarcely obtain credit on the written order of his guardian.

This law, intended for the benefit of that class of persons must not be made an instrument or engine of mischief to them. It cannot be construed to mean, that, if they extend to white persons credit, and let their services or property go in that way, even without consultation with their guardian, the debts thus contracted are not collectible. The guardian may ratify the contract, and a suit upon it is always sufficient evidence of ratification. There is no principle in the case of Bryan vs. Walton, 14th Georgia, 196, which controverts what we now rule.

There is abundant proof to sustain the verdict of the jury, if the witness is. to be credited, which we presume the plaintiff in error will not dispute.

Judgment affirmed.