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Richardson vs. Payne.

the duty of the plaintiffs when Harris' property was sold, to place the execution in the sheriff's hands to claim its

pro

rata share of the money to the extent of the defendant's interest in it. If the plaintiffs hail neglected to have done so in regard to the collateral in their hands as a security for the money agreed to be paid, and loss had resulted therefrom to the defendant, the plaintiffs would have been liable for such loss. In view of the evidence in the record, there was no legal ground for the court to have held that the correspondence between the parties amounted to nothing more than an offer to compromise a disputed claim between the parties.

After a careful review of the evidence contained in the record, the verdict of the jury, in our judgment, does substantial justice between the parties, and we will not, according to the repeated rulings of this court, interfere to control the discretion of the court below in overruling the motion for a new trial on the grounds of error alleged therein.

Let the judgment of the court below be affirmed.

ROBERT W. RICHARDSON, plaintiff in error, vs. SAMUEL T.

Payne, guardian, et al., defendants in error.

1. An award, though made the judgment of the court and founded on a rule

of reference of pending suits, may be set aside, on motion, as a void judgment, if it decides matters not referred to the arbitrator. When entered on the minutes, and made the judgment of the court, it is as good as, but no better than, any other judgment; and like any other judgment, if void for want of jurisdiction in the arbitrator, it may be so adjudged by the court

which made the act of the arbitrator its judgment. 2. If a portion of such award be within the terms of the reference, and an

other part not embraced therein, and therefore not referred, the award is good as to the part referred, and bad as to the other; and the court may set aside the judgment as to the part not referred and sustain it as to that referred, and this court will not interfere.

Arbitrament and award. Judgments. Before Judge BuCHANAN. Floyd Superior Court. January Term, 1875.

Richardson vs. Payne.

Reported in the opinion.

SMITH & BRANHAM, for plaintiff in error.

WRIGHT & FEATHERSTON, for defendants.

JACKSON, Judge.

Two equity cases, with the subjects matter embraced therein, were referred to an arbitrator. They had been previously referred, and an award had been made and excepted to, and that award and the exceptions were also referred. The arbitrator sustained the previous award and overruled the exceptions filed, and then gave judgment for Robert W. Richardson, one of the parties, the complainant in one bill and defendant in the other, for the sum of $225 39į. The award was made the judgment of the court. At the same term, the heirs of John W. Richardson, the other party in interest, moved to set aside and annul the award as to said sum of $225 393, on the ground, (among others,) that said portion of the award was outside of the rule of reference, and upon matters not referred, as shown by the record and order of reference. The motion was demurred to on various grounds, but substantially because the matters were referred to the referee; and the question is, did the rule of reference embrace three items which make up this sum of $225 391? These items

are:

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Amount paid by administrator for taxes since the war

$ 91 67 Amount allowed administrator for commissions Amount paid by administrator to Dean since award .

33 8272 The court below decided that these items were not embraced in the order of reference, overruled the demurrer, and set aside the award as to these three items.

1. On examining the rule of reference and the very voluminous record which is brought here for our review, we are not satisfied that the court below was wrong in deciding that these items were not embraced in the rule. If not so embraced, the judgment was right. An award, when made the

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Brown vs. The State of Georgia.

judgment of the court, has no greater sanctity than any other judgment, and may be set aside for want of jurisdiction in the referee, especially when such want of jurisdiction appears of record, and the motion is made at the same term.

2. And if the arbitrator hall jurisdiction over part of the matters decided in the award, and no jurisdiction over other matters, the court which made the award its judgment has full power, we think, to vacate the portion void for want of reference, and hence of jurisdiction, and to sustain the award as to all matters referred. This is precisely what we understand the court below has done here, and we affirm the judgment he rendered.

Judgment affirmed.

NED BROWN, plaintiff in error, vs. THE STATE OF GEORGIA,

defendant in error.

1. Where, pending a difficulty between the defendant and another, a third

person interposed betwen them, when the former struck at him with an axe, saying that if he did not get out of the way he would knock his brains out, a verdict finding the defendant guilty of assault with intent to murder is contrary neither to the law nor the evidence, even though the blow did not

take effect. 2. The newly discovered evidence being merely cumulative and for the pur

pose of impeaching witnesses, was no ground for new trial.

Criminal law. New trial. Before Judge UNDERWOOD. Polk Superior Court. February Term, 1875.

Reported in the decision.

ALEXANDER & WRIGHT; Ivy F. THOMPSON, for plaintiff in error.

Smith & BRANHAM; WILLIAM M. SPARKS, for the state.

WARNER, Chief Justice.

The defendant was indicted for the offense of an assault with intent to murder, and on the trial thereof the jury

VOL. LV. 12.

Brown vs. The State of Georgia.

found him guilty. A motion was made for a new trial, on the ground that the verdict was contrary to law, and strongly and decidedly against the evidence, which motion the court overruled, and the defendant excepted. After the adjournment of the court, another motion was made for a new trial before Judge UNDERWOOD, on the ground of newly discovered evidence since the adjournment of the court, which was overruled, and the defendant exected.

1. It appears from the evidence in the record that the defendant and one Stripling had a difficulty, when the defendant ran through the house and got an axe, (a common chopaxe.) When defendant made at Stripling. Mercer, the person on whom the assault was made, in order to stop the difficulty, ran between them, and then the defendant struck at Mercer with the axe, saying that if he did not get out of his way he would knock his brains out, but did not hit him with it. The axe with which the assault was committed on the

person

of Mercer by the defendant, being a weapon likely to proluce death, and the assault having been made without any provocation whatever, (Mercer acting as a peace-maker, the verdict was not contrary to law and the evidence, but in accordance therewith, and there was no error in overruling the defendant's motion for a new trial.

2. In regard to the second motion for a new trial before Judge UNDERWOOD, for newly discovered evidence, after the adjournment of the court, the alleged newly discovered evidence is merely cumulative of that offered at the trial, and going to impeach the credibility of the witnesses who were sworn in behalf of the state, on the trial, and therefore the motion was properly overruled, even if Judge UNDERWOOD had the legal power and authority to have heard the notion after the adjournment of the court, on the statement of facts disclosed by the record, but as no question was raised here in relation to that point in the case we express no opinion in regard to it.

Let the judgment of the court below be affirmed.

Kennedy & Morrow vs. Vandiver.

55 171 88 537

KENNEDY & MORROW, for use, etc., plaintiffs in error, vs

J. J. VANDIVER, defendant in error.

55 171 93 598

Where suit was brought in complaint in the statutory form of pleading, on an

account for coal, the items of which account were set out in a bill of particulars, and a special contract, in writing, embracing the same subject matter of the account was tendered in evidence and rejected, and plaintiff then moved to amend by setting out the special contract, and the court refused to allow the amendment made, but non-suited the plaintiff, with leave to move to reinstate the case, and the motion to reinstate was made and re

fused: Held, that the amendment should have been allowed, and the motion to rein

state granted on that ground.

Pleadings. Amendment. Before Judge UNDERWOOD. Floyd Superior Court. January Term, 1875.

Reported in the opinion.

Smith & BRANHAM; HAMILTON YANCEY, for plaintiff in error.

C. ROWELL, for defendant.

JACKSON, Judge.

This was a suit brought by the plaintiffs against defendants on an account under the statutory form of pleading. The account was for coal furnished defendants by the plaintiffs. The plaintiffs tendered in evidence a written contract touching the coal, setting out the terms of sale. The testimony was objected to, and the objection sustained. Plaintiffs then moved to amend by adding a count and setting out the written contract. The amendment was refused, and plaintiffs excepted.

A non-suit was awarded, with leave to move to reinstate the case. The motion to reinstate was made on the ground, among others, of the refusal to allow the amendment; the court refused to reinstate, and this is the error complained of.

The court should have allowed the amendment, and therefore should have reinstated the case. The statutory form may be amended, as has been repeatedly 'ruled by this court. The

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