Orr vs. Brown, et al.

the particular acts or declarations of the defendant, which are relied on to constitute the fraud.

In Equity, Pike Superior Court-application for injunction before Judge FLOYD, at Chambers, 1848.

This was a Bill in Equity, for relief and injunction, presented to his Honor, Judge Floyd, at Chambers, for his sanction, and which he refused, on the ground that the case made by the bill did not entitle the complainant to the injunction prayed, to which the complainant excepted.

The material allegations of the bill are as follows:

That the complainant was in possession of certain premises in the county of Pike, for which an action of ejectment was instituted, which was compromised, and a verdict by consent taken for the plaintiff in ejectment, for all of said premises, lying north of Solomon Street, in the city of Griffin, and for two acres south of that street, the complainant being allowed to retain the balance of the lot, consisting of one hundred acres, more or less, for the benefit of certain of his creditors, and a deed was thereupon executed by the Attorney at Law of the plaintiff in ejectment, to Pinckney B. Cox, reciting said proceeding and consent in the action of ejectment, and relinquishing for his client, as far as he legally might, to said Cox the title to the premises, for the payment of the complainant's debts as sheriff, together with the debt he owed said Cox, or for which Cox was liable for him, for the purposes of first selling the same, and paying off said official debts, and those due said Cox, or those for which he might be liable, and if any balance left, the same to go to the complainant. Cox entered upon the discharge of the trust created by said deed, the premises being surrendered up to him for that purpose. In pursuance of the trust, Cox afterwards entered into an agreement with George Prothro, for the sale of a portion of said premises for the sum of $1200, the titles to be perfected by sale of the same under an execution in favour of Reuben Brown, one of the defendants in error, against the complainant as principal, and his securities on his bond, as sheriff; that the same was accordingly put up to sale under said execution, and was bid off for Prothro, by Cox as his attorney, at said price of $1200; that Prothro declined and refused to pay bid or to take the sheriff's deed, but that Prothro is still willing to comply, if the sale hereinafter mentioned should be set aside.

the

Orr vs. Brown, et al.

Prothro having failed to pay his said bid, the sheriff re-advertised the premises, and again offered the same for sale; when said Reuben Brown, taking advantage of the absence of the complainant, which was occasioned by sickness, and with full knowledge of the facts stated, caused said premises containing the dwelling house of the complainant, and which was of the value of $1500, to be re-sold under said execution, and by reason of the facts aforesaid, and of doubts thrown upon the title by said Brown, and at his instigation, the same were knocked off to said Brown at the nominal sum of $500, being $1000 less than the actual market value thereof, and $700 less than the price agreed to be paid by Prothro.

That if said sale is permitted to stand, complainant will be wholly unable to pay his debts, &c.

That Brown is proceeding to obtain a deed from the sheriff, and will do so unless prevented. The complainant offers to refund to Brown his bid of $500.

.

The bill prays a decree setting aside the sale to Brown, and if

that cannot be done, then he prays for a specific performance of the terms of the sheriff's sale by Prothro the purchaser, as set forth in the complainant's bill.

HUNTER & WILSON, for plaintiff in error.

KING & HARMAN, for defendant in error.

By the Court-WARNER, J. delivering the opinion.

The object of the complainant's bill is, to enjoin the sheriff of Pike county, from making a title to the premises purchased by Brown, one of the defendants, at a sheriff's sale, and to set the same aside; and if that cannot be done, then the complainant prays, that the terms of the contract consummated, as he alleges, by the first sheriff's sale to Prothro, may be specifically performed. Prothro, as the record shews, bid off the land for the sum of $1200 00, at the first sheriff's sale, but refused to comply with the terms of the sale, and the land was subsequently re-sold, and purchased by Brown, the plaintiff in execution, for the sum of five hundred dollars.

[1] To so much of the bill as prays a specific performance of the first sheriff's sale by Prothro, it is a sufficient answer to say, that the Act of 19th Dec., 1831, provides an ample and adequate

Orr vs. Brown, et al.

remedy for the complainant. By that Act, it is declared, "that any individual who may become the purchaser of any real or personal estate, at any sale which shall hereafter be made at public outcry, by any executor, administrator, guardian or sheriff, and shall fail, or refuse to comply with the terms of such sale, when required so to do, shall be liable for the amount of such purchase money, and it shall be at the option of such executor, administrator, guardian or sheriff, either to proceed against such purchaser, for the full amount of the purchase money, or to resell such real or personal estate, and then to proceed against the first purchaser, for the deficiency arising from such re-sale; and in case of sheriff's sales, such suit may be brought in the name of the sheriff, for the use of the defendant, or plaintiff, in execution, or any other person in interest, as the case may be." The second section of the Act provides, that no note, or memorandum in writing, shall be necessary to charge the purchaser at such sale. Prince Dig. 471.

[2] With regard to the charge of fraud, made by the complainant, for the purpose of setting aside the last sheriff's sale, it is true, there is a general allegation in the bill, that the sale was fraudulent, but by whom the fraud was committed, or what particular acts of fraud were perpetrated, the record is silent. It is not sufficient to give a Court of Equity jurisdiction, much less to authorise it to interpose its strong arm of injunction, by making a general charge of fraud against a defendant. The complainant should state specific facts, that the Court may be enabled to judge whether the same constitute fraud. Story's Eq. Plead. 211, section 251.

The only charge which implicates Brown, the purchaser at sheriff's sale, is that he "threw doubts upon the title of the defendant in execution." What did he do at the sale? Did he make false representations as to the defendant's title, or did he state the truth in regard to it? There is no issuable fact, charged by the complainant, in relation to the conduct of Brown at the sale. How could he come prepared at the trial, to prove he did not throw doubts upon the title, unless the complainant had alleged what particular acts were done, or declarations made by him, at the sale, which had the effect to cast doubts upon the title. We forbear to express any opinion as to the validity of the title of the defendant in execution, as shewn by the exhibits to the

Adams vs. Barrett.

complainant's bill, as we are all of the opinion, the judgment of the Court below was properly exercised, in refusing to grant the injunction. Let the judgment of the Court below be affirmed.

[ADAMS, ADM'R, &c. vs. BARRETT.-The plaintiff'in error, having joined issue upon the assignment of errors in this case, with a protestando against the sufficiency and completeness of the bill of exceptions, upon the ground that said bill of exceptions does not contain copies of the several pieces of documentary testimony mentioned therein, and also that the testimony upon interrogatories of the several witnesses who were examined by commission, is not copied into said bill of exceptions.

The Court, upon argument heard, being of opinion that the evidence, as set forth in the bill of exceptions, is sufficient to enable the Court to understand fully and adjudicate correctly, the questions presented by the bill of exceptions; It is ordered, that the defendant in error take nothing by his said protestation, and that the same be set aside, and that the cause proceed as though no such protestation had been made.]

No. 46.-JAMES ADAMS, Adm'r of Rose, plaintiff in error, vs. N. BARRETT, defendant.

[1.] In Georgia, the person injured is not bound to prosecute the offender to conviction or acquittal, before he is entitled to bring an action for the civil injury, except in cases of treason, and of such crimes as are felonies by the Common Law.

[2] Such crimes as, by the Common Law, are followed by judgment of forfeiture of lands or goods, or both, are felonies in England.

[3.] Mayhem is not felony at Common Law, except by castration.

[4. ] When a contract which is illegal, or opposed to public policy, has been executed, in whole or in part, and the parties are in pari delicto, neither a Court of Law nor of Equity will interpose to give relief to either party, but will leave the parties where they find them.

In Equity, Upson Superior Court, tried before Judge Floyd, April Term, 1818.

Adams vs. Barrett.

The facts may be found embodied in the opinion of the Court.

CHAPPELL & HARMAN, for plaintiff.

GIBSON, POE & NISBET, for defendant.

HARMAN, for plaintiff in error, made the following points and relied upon the following authorities:

1st. A deed, the consideration of which, in whole or part, is the compounding or stifling a criminal prosecution for felony, is illegal and void. Story on Con. 507. 1 Story Eq. 300. 3 Kelly, 176..

A Court of Equity will entertain jurisdiction and direct the delivery up, cancellation, or rescission of agreements, securities. deeds, or other instruments which are illegal and void. 2 Story's Eq. 5 to 12. 1 Vesey & Beame, 244. 13 Vesey, 581. 11 Ib. 535. 6 Ib. 417. 1 Johns. Ch. R. 520-524. Drury on Inj. 10.

Equity will, where discovery is sought as the means of obtaining relief, by delivery up or cancellation of the void instrument, for the purpose of preventing multiplicity of suits, make a decree for the relief sought. 1 Story Eq. 80 to 90.

Equity will give relief to a party who is particeps criminis in the illegal transaction, where the securities or other agreements are repudiated by the party on account of their being against public policy; that the relief is asked by a particeps, is not material in Equity; the reason is, the public interest requires relief should be given, and is given the public through the party. 1 Story, 300 to 305. 11 Vesey, 535. Doug. R. 695, 97, 98. 9 Vesey, 292 to 298. 3 Por. 66 to 74, note 1. Cowp. 790. Eden R.

190.

A party cannot sustain an action for a civil injury, until he has discharged his duty to society by bringing the offender to justice on the criminal side of the Court, (for a felony,) and until the offender is tried and either acquitted or convicted, his civil remedy is suspended. Chitty Crim. Law, 4. 12 East, 409. 2 T. R. 751-6. 1 Hale, 546. 4 Bl. Com. 363. Bac. Abrdg. Tresp. E. 2 Trover, D.