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Wheeler vs. Redding.

BLECKLEY and JACKSON, Juilges, concurring.

As the mortgagee was dead, and her estate unrepresented, at the passage of the limitation act of 1869, there may be good reason for not applying the very letter of that act to the case. But leaving the letter, and following the spirit and equity of the act, the proceeding is still effectually barred. The Code itself does not indulge an unrepresented estate longer than five years : See section 2928. As all suspensions of the limitation laws ceased on the 21st of July, 1868, this five years indulgence terminated on the 21st of July, 1873. Now, let the period of time allowed by the act of 1869, to-wit: nine months and fifteen days, be added, and the suit should have been brought, at farthest, by the 6th of May, 1874; whereas, it was not brought until November, 1874. The proposition that rules the case, as we think, is this : In order that the want of representation of the creditor's estate may prevent the bar prescribed by the act of 1869 from attaching, it must at least appear that suit was brought within nine months and fifteen days after the five years' indulgence expired which the Code grants to unrepresented estates : See 50 Georgia, 382; Taylor vs. Jacoway, 54 Ibid., 500; Simmons vs. Moseley, July term, 1875.

A. W. WHEELER, sheriff, plaintiff in error, vs. BENJAMIN

REDDING, defendant in error.

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1. The sheriff has no right to suspend the sale of property under final process

because the defendant's attorney, on the day of sale, produces the defendant's petition in bankruptcy, (with adjudication thereon) in which the property levied upon is claimed as exempt by virtue of the bankrupt law, and because he is advised that he cannot, therefore, proceed to sell. Such facts, in answer to a rule nisi for not collecting the money on the fi. fa.,

will not protect the sheriff against attachment. 2. Where the sheriff has levied a fi. fa. upon land for a debt existing prior to

the constitution of 1868, it is not sufficient for him to show, in answer to a rule for the money, that he did not sell because the property had been set

Wheeler vs. Redding.

apart to the defendant as a homestead by the ordinary. His answer, at least, should show, affirmatively, that the homestead was not greater in quantity or value than the exemption allowed by law prior to the adoption of that.constitution.

Sheriff. Levy and sale. Bankrupt. Homestead. Before Judge CLARK. Sumter Superior Court. January Term, 1875.

Redding obtained a rule against Wheeler, sheriff, requiring him to show cause why he should not pay to the plaintiff $250 00 principal, with interest from September 7th, 1869, and costs, due on an execution against A. B. Raiford, placed in his hands for collection.

The sheriff answered that he had levied the execution upon a sufficient amount of property to make the money due thereon, and was about to sell the same, when W. A. Hawkins, the attorney for the defendant, exhibited to him Raiford's petition in bankruptcy, and adjudication, in the former of which said defendant claimed the property levied on as a part of his exemption; that he was then advised that he could not proceed with the sale; that the land levied on had been before set apart to the defendant as a homestead by the ordinary; that the whole matter was surrounded with difficulties which rendered it improper for him to sell until the questions made had been passed upon by the court to which he returned the proceedings; that he meant no contempt, and acted in the most perfect good faith.

Upon demurrer the answer was stricken and a rule absolute ordered to issue. To this decision respondent excepted.

HAWKINS & HAWKINS, for plaintiff in error.

W. B. GUERRY, for defendant.

BLECKLEY, Judge.

The sheriff, on being ruled, answered with two excuses : First, he said that on the day of sale the defendant's attorney produced the defendant's petition in bankrupcy, (with adjudi

Speer vs. Tinsley et al. cation thereon) in which the land levied upon was claimed as exempt under the bankrupt law, and that he was advised that he could not, therefore, proceed to sell ; secondly, he said that the land had previously been set apart as a homestead by the ordinary, under the constitution of 1868.

1. This was final process, and the bankruptcy of the defendant made no difference, unless the sheriff had been stopped by affidavit of illegality, claim or injunction : 40 Georgia, 257.

2. The debt, as we understand the record, appeared on the face of the execution to have been older than the constitution of 1868. Therefore, the sheriff's return, in order to protect him on the ground that the land had been set apart as a homestead by the ordinary, under the constitution, ought, at least, to have shown affirmatively that the quantity, if the land was in the country, or the value, if it was in town, did not exceed the exemption allowed by law prior to the adoption of the constitution. The sheriff admits by his return that he had property levied upon sufficient to satisfy the execution. He has shown no legal reason why he did not sell it.

Let the judgment be affirmed.

THOMAS D. SPEER, plaintiff in error, vs. REBECCA L. TINS

LEŤ et al., defendants in error.

55 89 59 230 72 564

1. A plea by a guardian cited before the court of ordinary to settle with his

wards, that he had taken the note of the executor of their father's will in settlement with such executor; that such executor was solvent at the time; that some time thereafter he ascertained that the executor was in debt, and in a year or two took a mortgage upon slaves to secure the note; that afterwards the executor absconded, and all his property was attached, and that he, the guardian, bought the mortgaged slaves, who were afterwards emancipated by the war and were a loss to him, connected with the allegation in the plea that he had charged himself, as guardian, with so much money due to each ward, and not alleging in said plea that the note he took was payable to him as guardian, or the mortgage made to him as such, and alleging as an excuse for not making the balance of the money due to his

VOL. LV. 7.

Speer vs. Tinsley et al.

wards out of said executor, that he hoped to have made it by a trade with

the executor, is bad, and on demurrer, was properly stricken by the court. 2. In such trial, on appeal to the superior court, it is not error to allow the

wards to show additional indebtedness of their guardian to them, by showing that they are heirs to their deceased brother, who was also a ward of the same guardian, and whose funds were in his hands; and his return to the ordinary of the estate of such deceased ward is proper evidence against

the guardian. 3. Where the court, on demurrer thereto, has stricken defendant's plea, it is

not error to rule out testimony offered to prove the facts set out in the plea, in substance the same, though slightly different, to avoid the force of the

blow which struck the plea. 4. On a settlement between guardian and wards, the guardian may show "all

reasonable disbursements and expenses suitable to the circumstances of his wards,” and if in the series of years in which he has managed his wards' estate, he has not expended the corpus, he cannot be held responsible for the profits or interest of the estate, though he may have spent for his wards more than the profits and interest of a given year that year, or less another year; provided, during the whole period of his guardianship, he has not expended more than the entire interest, and has disbursed it reasonably and suitably to the circumstances of his wards, and legally in other respects.

Guardian and ward. Pleadings. Evidence. Interest. Before Judge CLARK. Sumter Superior Court. April Term, 1875.

Reported in the opinion.

S. C. ELAM; McCAY & TRIPPE, for plaintiff in error.

N. A. SMITH; HAWKINS & HAWKINS, for defendants.

JACKSON, Judge.

Thomas D. Speer was cited to appear before the ordinary, by virtue of our Code, to settle with his wards, Rebecca L. Tivsley and Mrs. Durant, formerly Miss H. V. Tinsley. The ordinary found a certain sum due by the guardian to each of the wards, and Speer appealed to the superior court. The jury having been charged with the law by the court, found a verdict for Rebecca L. Tinsley for the sum of $861 38 principal, and $779 68 interest, and for Mrs. H. V. Durant the sum of $868 31 principal, anıl $1,086 54 interest. A motion

Speer z's. Tinsley et al.

was made for a new trial on several grounds; the court overruled it on all, and that judgment, on each ground, is assigned for error.

1. The first ground is, that the court erred in sustaining the demurrer to defendant's plea and striking the same. The plea, as set out in the record, is to the effect that the father of these wards left a considerable estate in the hands of one Thompson, who administered it; that defendant qualified as the guardian of these complainants, and took Thompson's note for $2,000 00, in part payment of what was owing to his wards, Thompson, at the time, being solvent, and that he hoped to realize the balance due his wards in a trade he expected to make for a negro with Thompson; that confiding in Thompson's character and credit, he charged himself with the sum of $863 59, due to each of his wards, to-wit: the two complainants and one T. H. L. Tinsley, their brother; but that Thompson afterwards being involved in debt, he took a mortgage on two of his slaves after some years' effort and delay; that Thompson afterwards absconded, and his property was attached, and defendant bought the two slaves mortgaged. It is not stated in the pleashat the note was taken by defendant as guardian, nor that he took the mortgage as such. Indeed, he had no right to have done so, and such action would have charged him individually. The plea is to be taken most strongly against him, and stripped of the argumentative part of it, it amounts to the foregoing statement. The result is that he charged himself as indebted to his wards in the sum aforesaid, which, by his own faith in the character and credit of Thompson, he never realized out of him; and having credited him, too, so far as we see from the plea, individually, on individual contracts, and not as guardian. We think that the court was clearly right in sustaining the demurrer and striking the plea. We see, from a note of the judge, that the plea was amended to the effect that he had ma le expenditures for his wards, and that he was allowed to make proof thereof.

2. Again, it is complained that the court erred in admitting

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