
    No. 95.
    John A. Lavender et al. plaintiffs in error, vs. William J. Thomas et al. defendants in error.
    [1.] Mortgages are not, within the Act of 1818, to prevent assignments, by-debtors unable to pay all their debts, to some creditors in preference to-others.
    [2.] It is not unlawful for a debtor, who is unable to pay all his debts, to replace a note for more than thirty dollars, given for one of the debts, with notes for less than thirty dollars, although the effect may be to put the debt secured by that note ahead of the other debts.
    [3.] A bill which seeks to have applied to the payment of the plaintiff’s demand, exclusively, a fund in which all ol' the defendants have an interest, is not multifarious.
    [4.] A bill prayed among other things, that a contract should be specifically performed: Held, that the parties to-the contract were proper parties to the bill.
    [5.] There are cases in which a person may, in Equity, be sued out of the county of his residence, as cases in which, otherwise, no decree at all could be rendered.
    In Equity, in Houston Superior Court. Tried before Judge Powers, May Term, 1855.
    
      The bill alleges—
    1. That, on the 17th Eeb. 1852, Wm. J. Thomas and John A. Lavender purchased, jointly, of Reuben H. Slappey and Littleberry Mulkey, five acres of land in the 8th district, a part of No. 92, except the right of way for rail road.
    2. A steam mill was then in operation on the five acres; price $2,700 in cash; but taken by Slappey; a note held by Lavender, on A. B. Dulin due 1st Jan. 1853, for $1,500, •without any words of negotiability.
    3. The note was endorsed by Thomas and Lavender, as guarantor, though it was to be Lavender’s part of the purchase money.
    4. Thomas and Lavender then executed joint notes to Slappey and Mulkey, for $1,370 93, due 1st Jan. 1853, including interest on payment for mill. Thomas signed first, individually, and then Lavender.
    5,. That for this consideration Slappey and Mulkey executed their deed, with certain timber privileges to Thomas and Lavender.
    6. That immediately after said purchase, and before work with the mill, Thomas and Lavender took in Daniel W. Yisscher as an equal partner.
    7. That in five or six weeks after the first purchase, Thomas bought out the entire interest of Lavender, but took no deed from him — Thomas paying two hundred dollars in lumber, and assuming the payment of the $1,500 note of Dulin, and the $1,370 93 note, made by Thomas and Lavender to Slappey and Mulkey; Lavender, in the mean time, abandoning all control of the mill.
    8. That during all this time, the title papers to the property remained in the possession of Thomas.
    9. That after the purchase of Lavender’s interest, Thomas had sole possession and control of the lot and mill, with the timber privileges; and made a contract with the rail road company to furnish stringers and cross-ties from Eort Yalley to Flint River, ten miles; worth $6 or $8000 gross.
    
      10. That Thomas then purchased of E. II. Oheever, all the saw timber on lot No. 69, and west half of lot No. 59, in the 8th district, and took a deed therefor.
    11. That Thomas also purchased of Cheever, timber of the same kind on 200 other acres of'land, the deed to which has been lost or mislaid.
    12. That the purchase from Lavender, and of the timber from others, was for the joint use and benefitof Thomas and Yisscher, who remained in quiet and excluisve possession, with the consent of Lavender, until Sept. 1, 1852, when Thomas, for himself and Yisscher, re-sold to Lavender all his former interest in the five acres, except the right of way. The timber and grist-mill, which had-been since added, were included in the re-sale ■ to Lavender, upon the understanding between Thomas and Lavender, as follows:
    First. That Lavender was to protect and save, harmless, Thomas on the Dulin note guaranty, and on the joint note to Slappey and Mulkey; both given for the five acre lot and mill.
    Second. That Lavender was to have the contract with the rail road for stringers and ties.
    Third. That Thomas was to continue to hold the titles to the property, as an equitable surety for the payment, by Lavender, of the two notes for $1,500 and $1,370 93.
    Fourth. That when Lavender paid off these two large notes, and also $450, which Thomas had paid for the gristmill and timber privileges, then Thomas was to convey to Lavender the five acres, the steam saw-mill, the grist-mill, and all the timber privileges.
    13. That immediately after this .bargain with Lavender, he took possession of all the property and used it, realizing on the rail road contract $3,000 or other large sum, besides ;$1.000 worth of lumber sold to other persons.
    14. That Lavender continued to possess and use the milk and other property as his own, until May or June, 1853, when both mills were burned down from the carelessness of Lavender, his agents or servants.
    
      15. That the burning of the mills changed the situation of the premises, and rendered the balance of the property of but little value.
    16. That other dealings had taken place between Thomas- and Lavender, when, on January 25,1853, Lavender executed' his note to Thomas for Six Hundred and Fifty Dollars, due one day after date.
    17. That Thomas had tendered to Lavender, a conveyance for all the mill property and timber privileges, if Lavender would take up or discharge Thomas from the notes for $1.500, and $1.370 93,’which he, Lavender, has wholly failed; to do.
    18. That, by process of law, and for his own safety,, Thomas has been compelled to pay off the $1.370 93’note.
    19. That Thomas and Yisscher are ready and willing, and offer to convey said 5 acres and the timber, upon Lavender’s re-imbursing the payments on said notes.
    20. That after the burning of the mills, Lavender recognized and claimed the land, mills and timber.
    21. That in June, 1853, he was about to rémove himself, ' family and property, beyond the State of Georgia, when Thomas, having previously paid off both the large notes, sued out bail process against Lavender on the $1.500 note, and also on other demands, under which process Lavender was committed to Crawford jail.
    22. That about the time of said bail proceeding, Thomas-, sued out attachments against the property of Lavender, which-were dismissed for irregularity.
    23. That previous to suing out said bail process and attachment, Lavender had caused a considerable portion of property that he claimed, and had in possession, to be removed to Texas, so that when said process issued, he had no proper-, ty in Georgia, within the knowledge of Thomas, exeept the 5 acres of land, the remains of the mill after burning, one negro man, the mill-carts, wagons, &c. horse and buggy, of not much value, and a large two-story house, and the lots thereto attached, in Fort Yalley, whereon Thomas now resides.
    
      24. That Thomas, by said attachment, pursued and brought back a negro man, J oe, as the property of Lavender.
    25. That two fi. fas. from Houston Superior Court, April Term, 1858, in favor of R. H. Slappey vs. Lavender, were levied on the house and lot in Port Yalley, which was sold under the levy, on the first Tuesday in November, 1853, by the Sheriff, for $1,580; and after Slappey’syi. fas. were paid, or partially paid, James A. Miller’s note was taken, he being the purchaser of the house and lot, and the money impounded by order of the Court.
    26. That while Lavender was in jail for debt, he “ fraudulently, and with intent to cheat, delay and hinder, and avoid the payment of Thomas’ debt, and for no other purpose whatsoever,” made to Peter Hindsman eighty odd notes, within the jurisdiction of a Justice of the Peace; and also executed to Hindsman a mortgage on said house and lot in Port Yalley, to secure the payment of said smaller notes.
    27. That Lavender caused himself to be sued in a Justice’s Court of Crawford County upon said small notes, and judgments rendered against him for between twenty-three and twonty-five hundred dollars.
    28. That while so in prison, Lavender executed to Harrison J. Sargeant, a mortgage upon ox-carts, mill-carts, and a large quantity of sawed rail road lumber and other articles.
    29. That the note on J. A. Miller for $1,580, is a fund in Court, subject to the bona fide creditors of Lavender, of which Thomas is one.
    30. That the debt to Hindsman is not bona fide, real or substantial, but was mafle or pretended to be created after the arrest of Lavender and while he was in prison, for the “ express purpose of covering up, concealing, cloaking and screening the said house and lot in Port Yalley” from the debt of Thomas, for which Lavender was imprisoned.
    31. That if the debt to Hindsman ever had any real bona fide existence, it was in a large note or notes above the jurisdiction of a Justice of the Peace; and that after the imprisonment of Lavender, he and Hindsman, “ for the express object, purpose and deliberate intent to cover up and conceal all-the property of the said Lavender from orator Thomas’ claim,' combined together to cheat and defraud orator Thomas, and.for that purpose split up and severed the said large note or notes,” and then.gave the mortgage.
    32. That combining to defraud Thomas, suits have been brought, judgments and executions obtained on the small notes, which no doubt will pretend to claim the fund in Court from the sale of the house and lot.
    33. That while in prison, Lavender executed small notes to A. D. Kendrick for a previously existing debt, for a sum from $80 to $140, which notes, given to create a fraudulent-advantage to Kendrick, to the prejudice of Thomas, "have been sued .to judgment.
    34. That when Lavender was preparing to abscond, sundry attachments in a Justice’s Court were levied on articles of property which had before been mortgaged for a pretended debt to LI. G. Sargeant, which property was brought to sale/ by a Constable, in Sept. 1853, when Sargeant attended with a mortgage fi. fa. issued that morning,, and gave notice to bidders that they would buy a law-suit. By this threat he purchased in most of the articles, including, some 50 or 60,-000 feet of rail road lumber, stringers and cross-ties, at the-greatly inadequate price of 50 cents per hundred, when the same was worth from 87-J cents to $1 per hundred feet, saying that he was buying said articles of property for the benefit of Lavender.
    35. That Lavender" afterwards, by the consent of Sargeant, disposed of said lumber and other property. The mortgagefi.'fa. was for between $1000 and $1200, foreclosed in the Inferior Court of Crawford County.
    36. That Samuel E. Dickinson obtained judgment against Lavender at July Term, 1853, of Houston Inferior Court, for between $700 and $900. His fi, fa. was levied on a negro man, Joe, which Thomas had brought back, on Lavender’s flight beyond Elint river, under his attachment; and the-negro has been sold fox’ $800, under Dickinson’s fi. fa. and the money is now held up in the Sheriff’s hands in Houston County.
    37. That Thomas has been at trouble and expense worth $400 or $500, in pursuing and bringing back said negro Joe,, and but for his diligence the said negro would not have been placed within the reach of the Sheriff of Houston County. During-all which time Dickinson took no active steps to secure himself, but profited by the diligence, of Thomas, which the Court ought not to allow him to do.
    38. That after Thomas had attached and taken out bail process, Carver & Johnson, combining with Lavender, procured a debt due them to be‘split up into small notes, which were sued in Justice’s Court, and judgment and execution obtained, on which the fund in Court will be claimed, in fraud of the rights of Thomas.
    39. That Hindsman has filed his bill, returnable to April Term, 1854, of Houston Superior Court, against R. H. Slappey, J. A. Miller and others, to fix a lien on the money in Court, and have it applied to the mortgage or small fi. fas. of' Hindsman against Lavender.
    The prayer of the bill is, that all claims, judgments, fi.fas. mortgages, and every pretended lien adverse to the rights of ‘ Thomas may be set aside ; that Sargeant account to Thomas for the true value of the mill, property and timber bought in by him fraudulexxtly; that the funds in Court from the sale of the house and lot and from the negro Joe, be held up until Thomas can get a decree against Lavender upon his equities, and the funds to he paid over to him, &c. &c.
    To this bill -the defendants filed a demurrer, upon the following grounds: ,
    1. Because there is ¡no equity in the bill.
    2. Because complainants had an adequate Law remedy.
    3. Because the bill is riiultifarious.
    4. Because Yisscher is improperly made a party.
    5. Because the Court has no jurisdiction over the persons of the defendants, Hindsman, Sargeant, Dickerson and Carver & Johnson.
    6. Because there is no equity in the allegations touching the burning of the mills.
    7. Because there is no equity in the allegations against Cheever a,nd Kendrick.
    8. Because the allegations against Hindsman, are vague, -uncertain and fishing in their character.
    9. Because there is no equity in the, allegations touching the claims of Dickerson or Carver & Johnson, and they are improperly made parties.
    After hearing argument, the Court sustained the demurrer as to the defendants, Harrison J. Sargeant and Samuel E. Dickerson, and ordered their names to be stricken from the bill,' and over-ruled the demurrer, as to all the other defendants, and Counsel for defendants excepted.
    Miller & Hall ; Stubbs & Hill, for plaintiffs in error.
    Scarborough, for defendants in error.
   By the Court.

Benning, J.

delivering the opinion.

This Court has in two cases decided that the Act of 1818, to prevent assignments to some creditors in preference to others, does not affect mortgages made to secure a just debt. (Lee and others vs. Brown and others, 7 Ga. R. 276. Davis and others vs. Anderson § Bro. 1 Kelly, 176.) To these decisions I give my assent; but it is not without much difficulty that I do so. There is certainly ambiguity in the .words of the Act.

The Act being interpreted by these decisions, it follows that the mere execution of the mortgage to Hindsman and Sergeant by Lavender, as stated in the bill, was not a violation of the Act.

The bill, however, states other objections to these mortgages.

To the mortgage of Ilindsman, the objection stated is, that the. debt secured by the mortgage was not bona fide real or substantial, but was made, or pretended to be made, after the arrest of Lavender, and while he was in prison, for the “ express purpose of covering up, concealing, cloaking and screen, ing the” house and lot mortgaged, from the debt of Thomas; “that if the debt to ilindsman ever had any real bona fide existence, it was in a large note or notes above the jurisdiction of a Justice of the Peace; and that after the imprison,ment of Lavender, he and Ilindsman, for the express object, purpose and deliberate intent to cover up and conceal all the property of the said Lavender from orator Thomas’ claim, combined together to defeat and defraud orator Thomas; and for that purpose, split up and severed the said large note or notes, and then gave the mortgage.”

This statement is a very uncertain one. The former part of it, however, the part alleging the non-existence of any real debt, has equity in it; and although this part may be in the .alternative with the latter part, yet, as under the late Act of Amendments it is amendable, as a matter of course, we will only say that the Court below ought to require it to be amended; and ought, if it is not amended, to dismiss the bill, as to Hindsman.

For in the alternate part of the statement, there is, as it -seems to us, no equity. Wo are not aware of any law which prevents a debtor, unable to pay all his creditors, from “ splitting up” a large debt into small ones, so as to enable the 'holder of that debt to obtain judgment in a Justice’s Court •sooner than the other creditors who have to sue in the higher ‘Courts may be able to obtain judgments on their debts, and thereby, to enable that debt to get a preference over these. The Act aforesaid, of 1818, is not such a law. That prohibits assignments, and assignments only. Equity does not forbid an insolvent debtor to prefer one of his creditors to another. (Stor. Eq. §370.) And then, the Act of 1801, amending the Judiciary Acts, as far as they relate to Justice’s Courts, gives its express sanction to such a division or '“splitting up” of a large debt as shall bring the debt within ihe jurisdiction of a Justice’s Court.

'[2.] The mere fact, then, that Ilindsman’s debt was “ split up,” so as to be brought within the jurisdiction of a Justice’s ■Court, was not a fact in which there was, in the opinion of this Court, any equity.

The objections to the other mortgage, that of Lavender to Sargeant, it is needless to consider, as the Court sustained the demurrer as to Sargeant.

This bill was not multifarious. All the defendants had an interest in the fund in thg hands of the Sheriff. The object of the bill was to get that fund applied to the payment of the complainant’s' debts, in preference to the debts -of any of the defendants. The manner in which this fund was to be applied, was a matter that concerned all of the defendants. If so, the bill was not multifarious. Booth and another vs. Stamper, (10 Ga. R. 116.)

Yisscher was a proper party plaintiff to the bill. One of the objects of the bill was to compel Lavender to perform his contract of purchase of the mill, &c. Yisscher was joint owner of the mill, &c. with Thomas when Thomas sold them to Lavender. The bill containing a prayer that Lavender, the vendee, should perform what was to be done on his side of the contract, Avould have, also, to contain an offer by his vendors to perform what was to be done on their side. That there might be such an offer, Yisscher, who was owner <of the mills, &c. jointly with Thomas, and one of the vendors, had to be a party to the bill. Yisscher was a party to the contract for the specific performance of which the bill prayed.

Was the Superior Court of Houston County, the Court which had jurisdiction of the case ?

The defendants, with the exception of Lavender, resided in other counties than Houston, and ho resided in Texas.

The great object of the bill is, to have the fund which is in the hands of the Sheriff of Houston applied in a particular way. It is true that no subpoena is prayed against the Sheriff of that county ; but the omission of such a prayer against him may have been an inadvertence. A decree is prayed against the fund in his hands. At all events, he may still be added as a party.

Considering the bill, then, as if he were a party to it. We answer the question, by saying that the Court in Houston was the Court which had jurisdiction of this case and of the defendants, although most of them resided, not in Houston, but in other counties.

In Gilbert vs. Hardwick, (3 Kelly, 575,) this Court say, that “Equity cases are not embraced in the term ‘civil cases,’ as used in sec. 1, art. 3 of the Constitution.” In Rice vs. Tarver, (4 Ga. R. 582,) they re-affirm this. In the cases of Jordan vs. Jordan and others, 12 Ga. R. 78, 15 Ga. R. 76, 16 Ga. R. 446,) there is nothing said by the Qourt, adverse to this position. In the last of these cases I, for myself, express a doubt as to whether the expression, “civil cases,” used in the Constitution,, does not include Equity cases. I still entertain that doubt, but I cannot, upon a doubt, dissent from the majority of the Court, supported, as they are, by two decisions of this Court, and many decisions, (as I am aware,) of the- Superior Courts.

Still, although the words, “ civil cases” may not, as used in the Constitution,, include Equity cases, yet, under the maxim that Equity follows' the Law, Equity cases will generally have to be brought in that county only in which the defendant resides. There may, however, be Equity cases in which it will be impossible to observe the maxim — as cases in which more parties than one are necessary to any decree, and those parties, some of whom reside in one county and some in another. And this case is such a one; for in this case no decree, disposing of the fund in the hands of the Sheriff, can be rendered, unless the case in which it shall be rendered shall be such a case as shall bring some one or more of the persons interested in the fund out of his county, into the county of some other of the persons interested in it.

That.being so, the best county in which to bring this suit, was the county in which the suit was brought. In that county resided the person who had the fund in his hands, and who. was Sheriff of the county, and who, as Sheriff of the county, held the fund. To require a Sheriff to leave his county to answer a suit, is to require him, for a time, to lay aside his public as well as his private business; and that time may happen to be one when a Court of his own county is sitting, or one which, for some other cause, calls imperiously for his presence in his own county.

The only objection which the bill states to the demand off Carver & Johnson is, that it had Ifcen “ split up” into smaller demands, that it might be brought within the jurisdiction off a Justice’s Court. This, as we have already seen, was not a good objection.

We think, therefore, that the Court should have sustained, the demurrer, so far as Carver & Johnson were concerned.

And this disposes of the case.  