O’Shields vs. The State of Georgia.

introduce a new man upon this hotly contested issue. Besides, it is remarkable that if he stood in four feet of O'Shields, that the latter did not see him and have him sworn on the trial. He knew O'Shields, he swears, and we suppose the

, , policeman knew him. Why, then, did he not subpæna him? It is remarkable, too, that Miller did not go up to the corpse at the time the others did. Who is Miller ? It is well, as remarked by Judge BLECKLEY in the case of Young vs. The State, decided this morning, that in these times some proof of the identity and respectability of witnesses whose testimony is newly discovered, and who appear only by affidavit, and are not seen in person by either court or jury, should be produced to fortify the motion on this ground.

It is needless to add that the court committed no error in providing for the wants of the jury in respect to medicines and necessaries; and that in recharging the jury at their request upon a point of law which troubled them, it is not imperative upon him to go over his whole charge again.

We have thought much over this case, and have given it that attention which its importance demanded. The credibility of the witnesses was for the jury; the conflict was to be reconciled by them; they have weighed and considered and passed upon it; there is enough in the record to authorize their verdict; the law has been given substantially and fully to them; no error has been committed by the court which, in our judgment, injured the defendant; he has had a fair trial, and we feel constrained to let the verdict stand.

Judgment affirmed.

a

INDEX.

ACCOMPLICE. See Criminal Law, 14-16, 49-51.

ACTION,
1. Where the substance of a long correspondence was, that defendant

agreed to pay a definite sum for execution against third person, the
fi fa. to remain the property of plaintiffs until paid for, then to be
transferred without recourse, and defendant failed to comply with the
undertaking, an action was maintainable on the correspondence.

Kimbell vs. Moreland et al., ex'rs, 104.
2. If one indicted for larceny, pay sum alleged to have been stolen, he

cannot recover it after acquittal. Puckett vs. Roquemore, 235.
3. If payment be made under agreement that prosecution shall be settled,

the law will leave parties where it finds them. Ibid.
4. Purchase money of goods sold to defraud creditors cannot be collected.

Heineman vs. Newman, 262.
5. “Gentlemen : In reply to your favor of the 22d inst., you will please

to withdraw your draft of $314 37 upon me, as I cannot pay for the
present. As soon as I have the money I shall remit.” Too indefinite

to sustain action. Sedgwick, assignee, vs. Gerding, 264.
6. No cause of action at commencement of suit, recovery cannot be had

on one subsequently accruing. Wadley, Jones & Co. vs. Jones, 329;

Fones vs. Lavender, 228.
7. Suit on an account in name of original creditor for use of another, no

concern of debtor whether it has been assigned to usee or not, unless
necessary to some ground of defense. Gilmore vs. Bangs, for use,

403
8. Failure of senior mortgagee to apply payment to mortgage as directed

by mortgagor, not give right of action to junior mortgagee. Sims vs.
Lester et al., adm'rs, 620.

ADMINISTRATORS AND EXECUTORS.
1. Land is fully administered when turned over to heir on final settlement.

Judgment thereafter obtained against administrator by creditor has no

direct lien thereon. Jones vs. Parker, 12.
2. "Creditors can follow assets into hands of distributee as well in a court of

law as in a court of equity, provided there are the requisite pleadings.

I bid.
s. Legatee cannot 'plead legacy as set off to suit by executor, unless he

shows estate in a condition to be distributed. Dobbs vs. Prothro et al.,

ex'rs, 73

4. Proof of representative character unnecessary where no plea of ne un.

ques administrator was filed. Merritt, adm'r, vs. Cot. States Life In-

surance Co., 103.
5. Witness, administrator is competent to show by debts of estate, other

than his own, necessity to sell land; also, his acts and state of ac-
counts, but not to prove any debt due to him from intestate arising
from partnership between them, or otherwise. Finch vs. Creech et al.,
124.

6. Though judgment de bonis be conclusive on executor in court of law,

yet equity, upon statement showing facts transpiring since judgment
which would render it inequitable not to allow such conclusion to be

rebutted, will interfere. Gause vs. Walker, ex'r, 129.
7. Returns of administrator are prima facie evidence for him. Wright,

adm'r, vs. Bessman, 187.
8. If it appear from face of execution that it is against the administrator,

it is valid, though “as” be not prefixed to “administrator." Fry vs.

Shehee, 208; Dorsey, ex'r, vs. Black, 315.
9. Foreign letters of administration have only such validity here as is im-

parted by statutes of this state. Turner et al., adm’rs, vs. Linam, 253.
10. The filing in the court of this state of an exemplification of the order for

the appointment of the administrator merely, no compliance with

Code, sections 2614, 2015. Ibid.
11. Failing to comply with such sections, no recovery can be had on demise

of his intestate. Ibid.
12. Administration granted to clerk of superior court, not place trust under

his official bond as clerk. McNeal et al., vs. Smith, gov., 313.
13. Judgment in favor of administrator, on contract with him, may be col.

lected by him after dismission. Hambrick vs. Crawford, 335.
14. Executors not estopped by failure to resist fraudulent application for

homestead before grant of letters. Killen et al., ex'rs, vs. Marshall,

340.
15. Legatees may divide estate among themselves though will directs that it

shall be done by commissioners appointed by ordinary. Minors who

ratify when of age, are bound. Hatcher et al. vs. Cade, 359.
16. Creditor of one legatee is confined to his share. Ibid.
17. Year's support takes precedence of any lien with which deceased hus-

band incumbered title, but not of liens which adhered thereto when

he acquired title. Murphy vs. Vaughan, adm'r, 361.
18. Fair sale by legatee of full age, to executor or his agent, not set aside

at mere election of legatee after years of acquiescence. Sale prima

facie valid. New et al., vs. Potts, ex'r, 420.
19. Heirs-at-law, before appointment of permanent administrator, have no

right of action on bond of temporary administrator. Webster et al.

vs. Thompson, adm'r, et al., 431.
20. Though heirs or legatees may distribute estate by consent, they cannot,

as against creditors, depart from due course of administration. Ames

vs. Cameron, 449.
21. Executor who allows estate to be distributed by consent among lega-

tees, does so at his own risk as against creditors, whether notice of

claims was presented within twelve months or not. Ibid.
AMENDMENT.
1. Cause of action, brought in short form under act of 1847, defectively

set forth, amendable. Bank of Americus vs. Rogers, 29; Kennedy

& Morrow, for use, vs. Vandiver, 171.
2. Factor's lien, counter-affidavit to foreclosure of, not amendable after

returned into court. Story et al. vs. Flournoy, McGehee & Co., 56.
3. Where fact that there was no personalty on which to levy fi. fa. is
known to officer, such entry may be made nunc pro tunc.

Gwinn vs.
Smith, 145
4. If original pleadings were full enough to give premonition that matter

embraced in amendment, was likely to be used on trial, surprise from
amendment no ground of continuance. Fones vs. Lavender, 228.

5. In proceeding to verify attachment bond under section 3271 of Code,

amount sued for cannot be reduced, by amendment, to conform to suf-
ficiency of bond. Latter amendable so as to conform to law. Lockett

vs. de Neufville et al., 454.
6. Judge may direct amendment of pleadings. Basemore vs. Davis, 504.
APPROPRIATION OF PAYMENTS. See Debtor and Creditor, 14.
ASSIGNMENT. See Debtor and Creditor, 1.
ATTACHMENT.
1. Security must be good for twice amount of debt sworn to. Lockett vs.

de Neufville et al., 454.
2. In proceeding under section 3271 of Code, to verify sufficiency of bond,

no question of amendment can be entertained, except to make bond
conform to law. The amount sued for cannot be thus reduced to

conform to sufficiency of bond. Ibid.
3. If bond be not made sufficient within time prescribed, officer should be

directed to dismiss levy. Ibid.

ATTORNEY AND CLIENT.
1. Fee to be percentage retained from amount collected, attorney not en-

titled to compensation for suing claim to judgment. Moses vs. Bagley

& Sewell, 283
2. Extent of professional obligations in making collections. Ibid.
3. Law firm which undertook collection dissolved; partner remaining in

charge of that case does so under original contract as to fees. Ibid.
4. The fact that the attorney mentioned to the client that the litigation was

heavier than had been contemplated, and he would charge additional
fees, if the case was compromised, to the extent of $1,500 oo, the
client then being about to try to effect a compromise, to which the lat.
ter made no response, not amount to rescission or modification of

original contract. Ibid.
5. Fee to be percentage on amount collected, contract not champertous.

Ibid.
6. Advice of counsel, how far protection to defendant on suit for malicious

prosecution. Fox vs. Davis & Company, 298.
7. Criminal cases, law may be read to jury by counsel subject to correction

in charge. McMath vs. State, 303.
8. That counsel advised omission of certain grounds of illegality, and also

that included ground was sufficient, not leg excuse for omission from
first on presentation of second affidavit, though counsel was mistaken

in his opinion. Hambrick vs. Crawford, 335.
9. Employment of attorney by principal to defend sci. fa., not bind security

for fees. Daly et al. vs. Hines & Hobbs, 470.
10. Pecuniary condition of client at time of employment, or when services

were rendered, pertinent in graduating fees; what it was several years

later is irrelevant. Ibid.
11. Section 3268 as to attorney's signing garnishment bond, is directory.

Burton vs. Wynne, 615.

AUDITOR.
1. Report finding simply balance due, not specifying result reached on any

issue of law or fact, too vague for intelligent exception. Should be
remanded for want of fullness and certainty. Reynolds vs. Martin
et al., executors, 628.

AWARD. See Judgments, 10, 11.

BANKRUPT.
1. Sheriff has no right to suspend sale because attorney produces defend-

ant's petition in bankruptcy (with adjudication thereon,) in which

property levied on is claimed as exempt. Wheeler vs. Redding, 87.
2. Land was conveyed on March 26th, 1863. Execution against vendor

for purchase money was levied on November 29th, 1867, and sale had
on first Tuesday in following August. Vendor was adjudged a bank-
rupt on February 3d, 1868, and discharged on 13th of following Oc-
tober: Held, that vendee's claim on warranty was barred by discharge.

Williams vs. Harkins, 172.
3. Bankrupt may recover for use of whom it may concern. Gilmore vs.

Bangs, for use, 403.
4. Dismissing bill prior to hearing, bankruptcy of some or all of defendants

no ground of. Suspending proceedings differs from dismissing. Bal-

lin & Company et al. vs. Ferst & Company et al., 546.
5. Separate partnerships engaged in business in different states, but com-

posed of same persons, bankruptcy of one firm covers debts and assets

of both. Ibid.
6. Adjudication in October, 1874, which recites act of 1867 as authority,

valid. That act is still of force. Ibid.
7. Trustees, funds in hands of receiver of state court ordered paid to, when.

Ibid.
8. Discharge not affect lien of judgment on land set apart to bankrupt as
exempt, the creditor not having submitted to jurisdiction of bankrupt

Bush vs. Lester et al., administrators, 599.
9. Land only protected as far as it would have been under homestead laws

of state. Ibid.

court.

BILLS OF EXCHANGE. See Negotiable Instruments, 5, 6, 8.

CARRIERS. See Insurance, II, 13.

· 34th

29th

84

44th
530

CASES CITED. (The page shows where cited.)
Akin vs. Ordinary of Bartow .

54th Ga. R., 172
Alderman, administratrix, vs. Chester .
Allen vs. Holding et al.

451
Armstrong vs. Lewis..

48th
Atlanta & LaGrange Railroad Company vs. Hodnett... 29th

353

80
Atlanta Mining and Rolling Mill Company vs. Gwyer..48th
Baggs vs. Baggs

696

54th
Baker vs. Bower.

591
Ballin & Company vs. Ferst & Company

582
Banks vs. Darden.

353

. 18th
Barber vs. Terrell .

479
Barnes vs. Shinholster.

580
Barnett & Company vs. Thompson

14th

405
Beale vs. Hall.

37th

97

22d
Beall vs. Craston.
Benjamin vs. Gill.
Beverly et al. vs. Burke..

9th
Birdsong & Sledge vs. McLaren

8th
Black vs. The State .

626
Blount vs. Wells .

608
Boon vs. Sirrine

38th

365

54th

5th

66

· 45th

315

46
368
520
382

• 36th
· 55th