Lockett de Neufville et al. losses during protracted litigation, be worth much less than the actual damages in the end. There is no provision for exacting new security, from time to time, as the old may fail. One of the risks, therefore, to be covered by the high security demanded at first, is a change, by lapse of time, in the resources of those who become bound on the plaintiff's bond. 2. In the scrutiny of the bond provided for by the act of 1873, the officer is to work to one end only, and that is, if the bond and security be not already such as they ought to have been when the attachment issued, to have them made so. The same standard of security is still before him, and he has no right to vary it. He should pronounce no security sufficient which is not good for double the debt sworn to. 3. In the present case the plaintiff being unable to satisfy the judge with the security, proposed, by way of amendment to his attachment and declaration, to reduce the debt to $100,000 00, and presented an amendment to that effect, with an offer to allow the bond and security already given to stand, or give a new bond with ample security in the sum of $200,000 00. To see that anything like this was quite aside from the object and purpose of the business in hand, it is only necessary to remember that the judge was sitting at chambers, as the officer who had issued the attachment with powers no more ample than a justice of the peace or a notary public would have had under the like circumstances. He could not act upon the attachment or upon the declaration in any manner whatever. His business was with the bond; and with it for the sole purpose of making it conform to the law as a bond in support of the attachment as issued and levied. Amendment of the bond to that extent, or the acceptance of a new bond, if in the proper amount and well secured, would have been within his functions; but beyond this, he had no concern with amendment or with substitution. The business in hand was to bring the security up to the attachment, not to carry the attachment down to the security. 4. In conformity to this view of the judge's functions, we hold that, while he did not err in rejecting the bond, he did VOL. LV. 30. Thompson vs. The Georgia Railroad and Banking Company. err in ordering that the attachment and the levy thereon be dismissed. The only final order which can be passed, on failure of the plaintiff to comply within the time prescribed by the previous order, is one declaring the plaintiff's default, and directing the levying officer to dismiss the levy. Such an order is proper, although not expressly provided for by the statute, which, itself directs the levying officer to dismiss the levy in default of the plaintiff's compliance. But the levying officer should have some authoritative evidence that the time has come for him to dismiss, and, to that end, an order declaring the default and instructing him to dismiss the levy is appropriate. Let such an order be passed in the present case, unless the plaintiff, within such reasonable time as the judge, in his discretion, may prescribe, shall give a proper attachment bond, with security, good for double the amount of the debt sworn to. Judgment reversed. 55 458 57 152 59 439 64 169 SUSAN J. THOMPSON, plaintiff in error, vs. THE Georgia 1. A motion for new trial, even when a rule nisi is granted thereon, is but pleading; and the rule, until made absolute, is not a judgment of the court adjudicating the matters of fact stated in the motion. 2. The granting of a rule nisi for a new trial, and entry of the same upon the minutes, even with an order that the rule operate as a supersedeas, will not authenticate the matters of fact alleged in the motion. The facts, to be accepted as true in the supreme court, over objection made at the proper time, must, if the new trial has been refused in the court below, be certified as true in the bill of exceptions, or their truth must clearly appear in the record by some other direct statement of the judge. 3. For the bill of exceptions to show truly that a rule nisi for a new trial was granted upon a motion which alleged certain grounds for the application, that the new trial was refused, and that such refusal was, upon the same grounds, excepted to and assigned as error, is no sufficient verification of the several matters of fact alleged in the motion as grounds for a new trial. 4. The verdict, in the present case, is supported by the evidence, and is not contrary to law. Thompson vs. The Georgia Railroad and Banking Company. Practice in the Supreme Court. New trial. Pleadings. Before Judge HOPKINS. DeKalb Superior Court. March Term, 1874. Reported in the opinion. B. H. HILL & SON, for plaintiff in error. HILLYER & BROTHER; CANDLER & THOMSON, for defendant. BLECKLEY, Judge. There is but a single decision of the court excepted to, and that is the judgment overruling the motion for a new trial. In the bill of exceptions there is a detailed specification of the various grounds contained in the motion; but there is no statement, direct or indirect, that the matters of fact which these grounds involve are true. The bill of exceptions and the certificate of the judge annexed thereto, (which latter is in the usual form) cannot, therefore, be taken as any verification whatever of these matters of fact. For the judge to certify that a motion was made by the party, upon certain grounds, and that the party excepted, upon the same grounds, to the judgment which the court rendered overruling the motion, is simply to certify to two things, both of which might be perfectly true, wholly irrespective of the truth of anything alleged in the grounds themselves. To exhaust such a certificate, it is enough that the motion was made on the grounds stated, and that the judgment overruling it was excepted to on the same grounds. There was, however, granted by the court, over the judge's own signature, a rule nisi, calling upon the opposite party to show cause why a new trial should not be granted upon these identical grounds; and the rule contained a direction that it should operate as a supersedeas until a final hearing on the motion. Moreover, the motion, with the rule nisi annexed, was filed in the clerk's office, and both of them came up as part of the transcript of the Thompson vs. The Georgia Railroad and Banking Company. record. It is thus clear that the grounds of the motion have all the authentication possible to give them by granting the rule nisi and ordering a supersedeas. It appears, also, that the rule was served upon counsel in due time, and there is nothing to show that any suggestion was made to the court below that any of the recitals in the motion were untrue, or that their truth was brought into question in any manner whatever. Of the eight grounds in the motion, one relates to the exclusion of evidence, and five to charges given and refusals or failures to charge. At the opening of the argument in this court, counsel for the defendant called attention to the state of the record and the bill of exceptions, touching these six grounds, and moved to dismiss the writ of error as to them, or to restrict the investigation and judgment here to the two remaining grounds; one of which is, that the verdict is contrary to the evidence, and to the weight of evidence, and the other, that it is contrary to law. It devolves upon us, therefore, to decide, in the first place, upon this motion, and see how much of the plaintiff's case is properly before us. In Snelling vs. Dowell, 15 Georgia Reports, 507, there was no question before the court touching the rule nisi; the sole question was on the brief of evidence. It was objected to the brief that there was no written approval of it by the court, no entry of such approval on the minutes, and no written entry by the clerk of the filing of the brief in his office. The facts were, that the brief was filed with the rule nisi, entered on the minutes in extenso, immediately following the rule, and the minutes were approved and signed by the presiding judge. On these facts, the judgment of the supreme court was, that it was error to discharge the rule nisi on the objections taken to the brief; and it was held, in substance, that the revision and approval of the brief appeared with sufficient certainty. The decision was by two judges only. In writing out the opinion Judge LUMPKIN stated, arguendo, that "if the facts assumed in the rule nisi are not true, it is the duty of the opposing counsel to controvert them at the Thompson vs. The Georgia Railroad and Banking Company. time the application is made. We are bound to believe that this was done." But this was mere obiter; there was no decision of the court to that effect, and the case called for no decision on any such question. No point had been made upon the facts assumed in the rule nisi; the points made were upon the brief of evidence, and upon that only. Besides, it is evident that the observation of the learned judge in regard to controverting the facts at the time of the application, could not have been well considered. The application to which he refers must be the application for the rule nisi. Surely it is not the duty of opposing counsel to controvert anything then ; that application is, or may be, ex parte; opposing counsel need not be present; the office of the rule nisi is to call upon opposing counsel and bring them in; it is granted in their absence and orders them up to show cause; they have nothing to do with the rule nisi until after it is granted: 21 Georgia Reports, 214. We cannot recognize this case as any direct authority whatever upon the verification of facts alleged in the rule. It bears on a totally different subject, namely: the revision and approval of the brief of evidence. Nor does it, by analogy, operate as an indirect authority; for, to revise and sign the minutes of the court, with the brief of evidence fully recorded thereon, does most directly and distinctly affirm the substantial correctness of the brief in every particular; whereas, all that is affirmed touching a rule nisi, by revising and signing the minutes in which it is recorded, is that the rule as there set out, was applied for and granted. Test this proposition by the case of a rule nisi against the sheriff, or of a rule nisi to foreclose a mortgage. See Choice vs. The State, 31 Georgia Reports, 462. The next case in which anything was said about recitals in motions for new trial is Hatcher vs. The State, 18 Georgia Reports, 460. It does not appear from the report whether a rule nisi was granted or not. On page 463, Judge LUMPKIN says: "Whether the motion being overruled, the judge is to be understood as indorsing the truthfulness of all the facts |