Sheppard v. Sheppard , 22 Ga. 426 ( 1857 )

By the Court.

Benning, J.

delivering the c pinion.

It is impossible for us to reverse the judgment of the Court below in this caso, without overruling Holmes vs. Liptrot, 8 Ga. Rep. 279.

That case has been directly attacked by the plaintiffs in error; and it has indirectly been admitted by them; and therefore it is perhaps, that the case has not. been defended by the other side.

We are not asked to overrule the case.

We are but two of the three Judges.

We therefore, arc not prepared to entertain the question, whether die case should not be overruled.

if that case is not overruled, the judgment in this, must be affirrobd; for that was a cuse in which the only person mentioned a.¡ the person in whose favor the covenant of the husband was to operate, was the wife, and yet the Court held, that the covenant was fatal to him, in a contest between him, and the wife’s children; and this is a case in which there is just such a covenant by the husband, and in which there are also other covenants by him, and it is a question by no means free from difficulty, whether those other covenants are not, of themselves, fatal to the husband’s pretensions.

Upon tlie whole, we say, that we cannot reverse the judg¡ merit of the Court below.

Speaking for myself,'I must say also, however, that I very much doubt, Holmes vs. Liptrot.

Judgment affirmed.