Gambar halaman

fair inference from what is alleged would be that there is no like exemption in that state, or, at least, none of which nonresident debtors could avail themselves. It appears that the defendants, who were creditors of the plaintiff, for the purpose of resorting to a Tennessee forum, and to evade this provision in the laws of Georgia, transferred their account to their attorney and caused attachment to issue in Tennessee and a garnishment to be served on the Western and Atlantic Rail. road Company, who was indebted to the plaintiff for wages earned as a daily laborer. The effect of this garnishment was to constrain the plaintiff to pay the debt, in whole or in part, which he owed to the defendants, the sum paid being thirteen dollars. This is the grievance of which he complains, alleging that he was injured and damaged thereby in the sum of two thousand five hundred dollars. Both parties being citizens of Georgia, it is not unlikely that, if application had been made in time, an injunction might have been obtained restraining the defendants from prosecuting their attachment and garnishment in Tennessee. Ample and apparently sound authority for so doing may be found: Snook v. Snetzer, 25 Ohio St. 516; Keyser v. Rice, 47 Md. 203; 28 Am. Rep. 448; Teager v. Landsley, 69 Iowa, 725; Hager V. Adams, 70 Iowa, 746; Mumper v. Wilson, 72 Iowa, 163; 2 Am. St. Rep. 238; Wilson v. Joseph, 107 Ind. 490.

It does not follow, however, that because the plaintiff might have asserted his exemption in this way, and claimed the benefit of the law of his own state, it was in any sense unlawful or legally wrongful for the defendants to bring their attachment in Tennessee, and use there the remedy of garnishment furnished by laws of that state. Unless restrained by some tribunal of their own state, they were but exercising a privilege common to all citizens of the United States. While left free to act according to their own will in the use of remedies, they had as much right to sue in Tennessee as they would have had if they were citizens of that state: Morgan v. Neville, 74 Pa. St. 52. In dealing with a somewhat similar question, the supreme court of Massachusetts, in Lawrence v. Batcheller, 131 Mass. 504,.speaking by Field, J., said: “The argument of the plaintiffs in the case at bar is, that as it was contrary to equity for the defendant to proceed with his suits to judgment, and to a satisfaction of the judgment from the funds attached, 80 it is contrary to equity for him to retain the money so obtainod; and that they can maintain an action at law against the defendant for money had and received to their use, because the money ex æquo et bono belongs to them. This argument rests upon the assumption that courts of law will afford & remedy in damages for all wrongs done, which courts of equity, if seasonably applied to, will prevent; but this is not true. Courts of equity recognize and enforce rights which courts of law do not recognize at all; and it is often on this ground that defendants in equity are enjoined from prosecuting actions at law.” The plaintiff may have had his election to bring the defendants' rights, as against his wages, to the test of Georgia law, or allow them to be tested by Tennessee law. This election could be exercised, however, only in due time and proper manner. He could not allow the law of Tennessee to be applied to the case, and afterwards, by such an action as this, have the law of Georgia applied to it. His remedy, if he had any, was to prevent, by injunction upon his adversary, the application of Tennessee law as a rule of adjudication. This he did not do, otherwise than by paying the debt. Although it is not distinctly stated, we think it is to be in ferred from the language of the declaration that he paid before the proceeding in Tennessee reached a conclusion by judgment. Had it resulted in a judgment, there can be no doubt, assuming that the attachment and garnishment were regular according to the laws of Tennessee, that such judgment would have to be treated in Georgia as having the same effect as would be ascribed to it in Tennessee: Green v. Van Buskirk, 5 Wall. 310; 7 Wall. 139. A case very similar to the present has been decided in Indiana, and it was held that, even though there was a statute making the act complained of penal, no recovery could be had for the transfer of a just debt, and proceeding upon it by attachment in another state, though the effect was to deprive the debtor of his exemption allowed by the laws of his own state, of which state the creditor also was a citizen: Uppinghouse v. Mundel, 103 Ind. 238. The soundness of that adjudication may be questioned, inasmuch as there was an express statute violated. But with us there is no such statute, and we are therefore not required to go the full length of this Indiana precedent. Upon no recognized theory of a malicious abuse of process, or the malicious prosecution of a civil action, can the declaration before us be upheld. There was a just debt, and a lawful resort to a competent forum (nothing to the contrary being alleged) for its collection, and payment was made either pending the suit or after judgment. The debt was thus in whole or in part er. tinguished. The money paid is no longer that of the debtor, but bas become the property of the creditor. While thero may have been damage, there has been no legal injury, no wrong done to the plaintiff, for which any court adjudicating upon legal principles can afford redress.

There was no error in sustaining the demurrer to the declaration.

Judgment affirmed.

EXEMPTIONS - GARNISHMENT OF WAQES - CONFLICT OF LAWS - When a corporation is garnished for a debt due to a citizen who is a resident of an. other state, the exemption laws of such state cannot avail as a defense to the garnishee, anless the debt is also exempt by the laws of the state where the garnishee is summoned: Note to Mumper v. Wilson, 2 Am. St. Rep. 241. See also Berry v. Davis, 77 Tex. 191; 19 Am. St. Rep. 748, and note.

Contrary to the doctrine of the principal case is the rule laid down in Drake v. Lake Shore etc. R’y Co., 69 Mich. 168, 13 Am. St. Rep. 382, where it is decided that a creditor who is a citizen of one state cannot, by assigning his claim to a citizen of another state, use the courts of that state to collect a debt against a citizen of a former state, whose person or property is not within the jurisdiction where the suit is brought, and whose wages, songht to be reached by garnishment, are exempt under the laws of his stata



Assault made with a weapon likely to produce death, but from which no killing results, does not raise a presumption of an intent to kill. Malice in an assault by stabbing does not necessarily include an intention to kill R. J. Jordan, for the plaintiff in error. C. D. Hill, solicitor-general, for the state.

BLANDFORD, J. The main error assigned by the plaintiff in error in this case is, that the court erred in charging the jury as follows: "You have heard, gentlemen of the jury, the evi. dence as to the sort of weapon the assault was made with; and lif if you believe that it was a weapon in its nature and of a sort that was likely to produce death, then the law presumes that that assault was made with the intent to murder. I say the law presumes; that is, the law raises the presumption, from the use of a weapon likely to produce death, that it was done with the intent to murder. And if you believe from the evidence that an assault was made by this defendant, and with such

a weapon, then, as I say, the law raises the presumption that it was done with intent to murder; and if that presumption is not rebutted by evidence upon the part of the defendant, the presumption that the law raises remains." This, in our opinion, was manifest error. We know of no case decided by this court that sustains this charge. The nearest case which approaches it is that of Collier v. State, 39 Ga. 31; 99 Am. Dec. 449. In that case this court held that if a man shoot with & pistol at another, and hit him, the law would presume prima facie that he did it with malice; that no one has a right to shoot at another with a loaded pistol in sport, and if he does so, he is responsible for the consequences, and the law will imply malice from the recklessness of the act.

Where death takes place from unlawful violence, malice includes an intention to kill: Code, sec. 4321. But where death does not take place, there may be malice in giving the wound, but utter absence of intention to kill. The law will impute the intention to kill where there is a killing, but not where there is none. Malice in an assault by stabbing does not necessarily include an intention to kill. Malice may prompt or attend any injurious act whatever. It is a necessary ingredient, for instance, in libel, malicious mischief, and malicious prosecution. The general definition of malice is," wickedness of purpose; a spiteful or malevolent design against another; a settled purpose to injure or destroy another": Burrill's Law Dict. 698. From the use of a deadly weapon in a manner calculated to injure, the law will presume an intention to injure; or from the use of it, with intention to kill, in a manner calculated to accomplish the intention, the law will presume that, had the killing taken place, the homicide would have been murder. But this is as far as the mere legal presumption as to malice or intent will go, on trials for assault with intent to murder. That an effect not produced, and which if produced would have constituted a different offense from that actually committed, was intended, is surely for determination by the jury as a matter of fact. The law, without the aid of the jury, cad presume the malicious motive or the intention, so far as realized in the act, but not an intentiou beyond what was so realized.

See also Hogan v. State, 61 Ga. 43, where the point involved in the present case was considered. In Kinnebrew v. State, 80 Ga. 232, the question as to presumptions of law and presumptions of fact was extensively discussed, and the rule properly laid down by the present chief justice. Under the rule therein stated, this charge was error. It would have been a proper charge for the court to have instructed the jury that if the accused assaulted the person wounded with a weapon likely to produce death, and if death had ensued it would have been murder, then the law would presume that the assault was an Assault with intent to murder. This is probably as far as the court should go in a case of this character; and we know of no direct decision in this state (nor of any other state in the Union) to the effect that the law presumes, because an assault was made with a weapon likely to produce death, that it was an assault with intent to murder. Where it takes a particular intent to constitute a crime, that particular intent must be proved to the satisfaction of the jury. It does not require direct or positive proof; but the circumstances must be such as would authorize the jury (and not the court) to infer the intent with which the act was done. In Lawson on Presumptive Evidence, p. 271, rule 66, it is laid down as the correct rule that “when a specific intent is required to make an act an offense, the doing of the act does not raise a presumption that it was done with the specific intent." Where one is charged with assault with intent to murder, and it is proved that he fired a loaded pistol at another, there is no presumption of law that he intended to murder the person thus fired at. In the cases of Roberts v. People, 19 Mich. 401, and Mahor v. People, 10 Mich. 212, 81 Am. Dec. 781, we think the law is properly laid down by the court. It is there stated that the “ general rule is well settled, to which there are few, if

any, exceptions, that when a statute makes an offense to consist of an act combined with a particular intent, that intent is just as necessary to be proved as the act itself, and must be found by the jury, as a matter of fact, before a conviction can be bad. But especially when the offense created by the statute, consisting of the act and the intent, constitutes, as in the present case, substantially an attempt to commit some higher offense than that which the defendant has succeeded in accomplishing by it, we are aware of no well-founded exceptions to the rule above stated, and in all such cases the particular intent must be proved to the satisfaction of the jury; and no intent in law, or mere legal presumption differing from the intent in fact, can be allowed to supply the place of the latter." We think the law is correctly stated in the cases referred to. See also Wharton's Crim. Law, 316; Greenl. Ev., secs. 18, 17.

« SebelumnyaLanjutkan »