English et al. vs. Reid et al. net balance in his hands arising from the sale of Johnson's property over to the receiver appointed by the ordinary, to be invested as a homestead exemption for the benefit of Mrs. Johnson and her children, that the rule be discharged as to that net balance. To which decision of the court the parties defendant in the rule excepted. On the trial the defendants in the rule endeavored to prove that inasmuch as the Colt fi. fa. had been assigned, that it had been paid off to the assignees thereof, and for that purpose, offered the testimony of Branch, Stone and Brown in relation to a correspondence with some of the assignees of the judgment, proposing to settle the claim by the payment of $1,000; that Stone had the $1,000 00 on the day of sale, but never tendered any money; that Brown had a conversation with Grimes, one of the assignees, on the day of the sale of the property, who was much dissatisfied with Colonel Foster, because he would not take the $1,000 00, etc., which testimony so offered was ruled out by the court, and the defendant excepted. In view of the facts of this case, as disclosed by the evidence in the record, we find no error in overruling the motion for a new trial. 1. The Colt f. fa. was of older date than the homestead act, and of older date than the mortgage fi. fa. under which the property was sold. The sheriff had that fi. fa. in his hands with notice to retain the money when he paid out the same, taking an indemnifying bond to protect himself in case he should be ruled for the money, as he might reasonably have expected to be, and therefore he must look to his indemnity bond for protection after he has paid the amount due on the Colt fi. fa. 2. The evidence offered for the purpose of showing that the Colt fi. fa. had been satisfied did not even approximate to the establishment of that fact; there was no executed agreement to that effect, and no money paid, therefore the evidence offered in relation to that point in the case was properly ruled out by the court. Let the judgment of the court below be affirmed. Groover et al. vs. King. NANCY W. GROOVER et al., plaintiffs in error, vs. JAMES KING, defendant in error. 1. The record in this case does not furnish any clear evidence of error in the refusal to grant a new trial. 2. If, upon a bill by several complainants against one defendant, brought to recover a tract of land from the defendant, and to make partition thereof among the complainants, the jury find for the complainants (upon the condition of their paying to the defendant a certain sum of money) seven-ninths of the premises, and for the defen lant two-ninths, the verdict sufficiently disposes of the issues in the case, although it is silent as to partition and omits to provide for the sale of the land. 3. The scheme of relief contemplated and provided for by such a verdict is, that the complainants, upon making the payment within a reasonable time, are to be admitted as tenants in common with defendant, they with an interest of seven-ninths, and he with an interest of two-ninths; and, upon failure to make such payment in a reasonable time, their right to be so admitted ceases, and the defendant retains the land as sole owner, free from all claim to it by complainants. 4. The decree rendered should have been in conformity to the verdict thus construed; and it is still competent to render such decree, which ought, likewise to define what is a reasonable time, under all the circumstances of the case; and, as a guide to the determination of this question, the chancellor should hear evidence for himself, or refer the question to a jury, according to his discretion. 5. It was error, in decreeing upon such a verdict, at the instance of the defendant, to declare the complainants do recover seven-ninths, and the defendant two-ninths of the premises, that the defendant have and recover of the complainants the said sum of money, and that execution issue for the same, to be levied upon the complainants' seven-ninths of the land. New trial Verdict. Decree. Partition. Before Judge STROZER. Brooks Superior Court. November Adjourned Term, 1874. A report of this case is unnecessary. J. G. MCCALL; J. L. SEWARD; A. T. MCINTYRE; PeePLES & HOWELL, for plaintiffs in error. J. R. ALEXANDER, by A. W. HAMMOND & SON; H. G. TURNER, for defendant. BLECKLEY, Judge. Salter et al. 7's. Smith. The case was tried by a judge from another circuit. Time was given for acting on the motion for new trial, but it was not presented for action within the time allowed. Excuse was offered for the delay, but it was deemed insufficient. The motion was finally acted on and refused, at a subsequent term of the court, by a judge who did not try the case and knew nothing of the charges of the court complained of. We do not see that he erred. All other points ruled upon by this court may be sufficiently understood from the head-notes. The complaint that the verdict did not provide for partition is no reason for setting the verdict aside. The partition which the bill prayed for was partition among the complainants, not between them and the defendant. In such a partition as that, the defendant had no interest, and it was consequently not an essential issue in the litigation. The decree made on the verdict was erroneous, and for that reason the judgment, as to it, is reversed. Judgment reversed. 55 244 62 452 62 455 SAMUEL P. SALTER et al., plaintiffs in error, vs. JAMES M. 1. Where a prisoner is in the common jail charged with a bailable offense, and the sheriff of the county take bail and discharge him from prison, though the bond be executed on Sunday, it is valid, and if the defendant does not appear at court, the bail is bound. The case is within the exception of section 4579 of our Code, it being a work of charity or necessity. 2. If it be apparent from the record that the forfeiture of the bond has been very irregular-doubtful whether the execution on it was not issued at the first term before it was finally forfeited; if the names of the securities were not called on its forfeiture; if counsel for thesecurity asked if it was his client's case, and the judge responded it was not, there being an issuable plea filed by the security; if the sheriff witnessed all this, and if in addition thereto a motion to set aside the judgment of forfeiture was pending in Salter et al. vs. Smith. court-a rule against the sheriff to pay the money on such execution instanter ought not to be made absolute. The facts relieve the sheriff from contempt in not executing such process. Bail. Bond. Sabbath. Sheriff. Contempt. Before L. P. D. WARREN, Esq., judge pro hac vice. Dougherty Superior Court. April Term, 1875. Reported in the opinion. D. H. POPE, for plaintiff in error. B. B. BOWER, solicitor-general, for defendant. JACKSON, Judge. Jesse Peterson was indicted for larceny and imprisoned to answer the charge. Salter came into Albany on Sunday and bailed him out of jail, standing his security on a bond for his appearance, taken by the sheriff. Peterson failed to appear at court, and a scire facias was sued out. Salter defended on the ground that the bond was executed on Sunday, putting in a defense in writing to that effect. When the case against Peterson was called on the trial criminal docket, Salter's counsel asked if that was the case on which he was security; the sheriff and the judge both replied in the negative; the name of the security was not called, but the judgment of forfeiture was entered by the solicitor general. The next morning a motion was made by the counsel of Salter to set aside this judgment. In the meantime a fi. fa. had been issued on the forfeited bond and placed in the sheriff's hands, and we suppose that the motion to set aside the judgment had been continued, as a rule was pending against the sheriff for not having made the money on the fi. fa. The bill of exceptions and the record are both silent as to the term when the scire facias issued, and when the final judgment of forfeiture was made, as well as the time when the fi. fa. was issued and placed in the sheriff's hands. It was agreed, however, that the motion to set aside the judgment of forfeiture and the rule against the sheriff Salter et al. vs. Smith. should be both heard together. The court refused to set aside the judgment, and sustained the rule against the sheriff, making it absolute, and two errors are assigned here for our review: first, that the court should have set aside the judgment, and secondly, that he should have discharged the rule. 1. The judgment of forfeiture appears to have been entered irregularly, to say the least. The name of the security was not called. Salter's counsel asked if it was the case on which he was security, and both the judge and the sheriff said it was not. But of what avail will it be to Salter to set it aside to enable him to put in his defense, if the defense be not good; so that it seems the practical question is this: Is the bond void because it was executed on Sunday? And that is the question argued by counsel before us, and upon which it was admitted that this branch of the case turns. Our statute punishes all persons who pursue "their business or work of their ordinary calling on the Lord's day, works of necessity or charity only excepted:" Code, section 4579. We think that this statute should be rigidly enforced. Independently of the moral obligation resting upon all men to obey the law of the Lord, and to observe, by abstaining from all secular business, the day set apart for His worship throughout christendom, the rest of one day in seven from all physical and mental labor, is a great conservative, refreshing, invigorating means designed by Almighty wisdom for the preservation of health and the recreation of our mental and bodily faculties. But neither the law of God nor the law of man forbids us to do good on the Sabbath day. The Saviour rebuked the Pharisees who questioned His divinity, because He healed the impotent man on the Sabbath, and bade him take up his bed and walk; and He who spake as never man spake, said that the Sabbath was made for man, not man for the Sabbath, and that it was lawful to do good on the Sabbath day; and His own pure and perfect life illustrated His teaching by deeds of constant kindness and beneficence on the Sabbath day. When the statute of Georgia, therefore, excepts works of benevolence and charity from the operation of this penal statute, it |