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Walker vs. Zorn.

equitable mortgage for the security of the debt due to them, by Lee & Fulton, but they relied upon their deeds as conveying to them an absolute title to the property. In view of the evidence contained in the record, we find no error in the charge of the court to the jury, or in overruling the motion for a new trial.

Let the judgment of the court below be affirmed.

MARTUS B. WALKER, plaintiff in error, vs. John C. ZURN,

defendant in error.

A count for mesne profits in a pending action of ejectment, is a suit to recover

money, and the plaintiff, on complying with section 3533 of the Code, may have process of garnishment, as in other cases “where suit is pending."

Ejectment. Garnishment. Before Judge BUCHANAN. Upson Superior Court. May Term, 1875.

Report unnecessary.

SAMUEL HALL; WILLIAM S. WALLACE, for plaintiff in

error.

A. M. SPEER; PEEPLES & HOWELL, for defendant.
BLECKLEY, Judge.

The count for mesne profits, in an action of ejectment, is a claim for money, and when such an action is pending we see no reason for denying the plaintiff the remedy of garnishment. The Code seems broad enough to embrace all money demands, whether resting on tort or on contract: Code, sections 3532, 3533, 3278.

Judgment affirmed.

Gosha vs. The State of Georgia.

WESLEY Gosha, plaintiff in error, vs. The STATE OF GEOR

GIA, defendant in error.

1. An infant under ten years of age cannot consent to sexual intercourse, and

the fact that such is her age is conclusive that the act is done forcibly and

against her will. 2. The venue of a crime must be established clearly and beyond all reason

able doubt; and where there is no positive proof that the offense was committed in the county of Sumter, but the only proof of the place is that it was within fifty yards of a residence in Sumter county, it does not affirmatively appear with sufficient certainty that the crime was committed within the jurisdiction of the court, and therefore a new trial must be awarded.

Criminal law. Rape. Infant. Venue. Before Judge CLARK. Sumter Superior Court. October Term, 1875.

Reported in the opinion.

ALLEN Fort; J. R. McCLESKEY, for plaintiff in error.

C. F. CRISP, solicitor general, for the state.

JACKSON, Judge.

The defendant was indicted and found guilty of rape. He moved for a new trial, and error is assigned here on two grounds: first, that the court erred in charging that a female child under ten years of age could not consent to sexual intercourse, so as to show that the act was not done forcibly or against her will, there being some proof of her consent; and secondly, because the venue was not sufficiently proven; and these are the two questions the record before us makes.

1. As to the first question, the rule at common law is well established, and we think founded in wisdom: See 4 Blackstone, (Cooley) 210, 212. It has also, in effect, received the sanction of this court: Stephens vs. The State, 11 Georgia Reports, 238. We shall not disturb it. That rule is, that her tender years concludes the question-she cannot consent.

2. In respect to the second point, we think that it does not appear affirmatively, with sufficient certainty, that the crime

Davis et al. vs. Davis.

was committed in the county of Sumter. There is no positive proof in the record of the precise locus—the place where it occurred. It was within fifty yards of a residence, and that residence was within the county of Sumter; but there is no proof whether on the line, or near the line, or in the centre, or in what part of the county that residence was. It might have been within twenty yards of the line. We are constrained, therefore, to grant a new trial in this case on this ground, and do so the more readily because we think that the court below was rather severe in the penalty inflicted, twenty years in the penitentiary. The defendant was only some sixteen years old; the girl probably did consent; and while the law renders that no justification, as she was under ten, yet, perhaps, it should so mitigate the crime as to make the punishment lighter. At all events, we give him another opportunity of being heard before the jury and of appeal to the tender mercies of the court below. The parties all belong to the colored population of our state, who, owing to their ignorance, as a general rule, should have justice administered to them tempered with much mercy.

Judgment reversed.

HENRY H. Davis et al., plaintiffs in error, vs. BENJAMIN

Davis, executor de son tort, defendant in error. Complainants, as heirs-at-law, cannot maintain a bill against defendant,

as an executor de son tort, for property conveyed to him by their ancestor during life, the deed being alleged to have been procured through fraud; aliter, if they were creditors, and there was no administration.

Administrators and executors. Debtor and creditor. Before Judge KIDDOO. Randolph Superior Court. May Term, 1875.

Reported in the decision.

H. & I. L. FIELDER, for plaintiffs in error.

Davis et al. vs. Davis.

B. S. WORRILL, for defendant.

WARNER, Chief Justice.

This was a bill filed by the complainants against the defendant as executor de son tort of Mary Davis, deceased, alleging that the said Mary died intestate, entitled to certain personal estate in money, of the value of $1,600 00, which was in the hands of the defendant at the time of her death, either as a loan or deposit; that no administration has been had on her estate, and that the defendant, without legal warrant or authority, has possession of said estate in money, and claims the same as his own right and property, and refuses to pay the same to complainants, who are the heirs and distributees of said Mary Davis, deceased, but has wrongfully appropriated and converted the same to his own use; wherefore the complainants pray that the defendant may account for said estate in his hands, and be decreed to pay the same to them.

On the trial of the case, the jury, unler the charge of the court, found a verdict in favor of the complainants, for the sum of $1,953 75. The defendant made a motion for a new trial on the several grounds therein set forth, which was granted by the court, and the complainants excepted.

It appears from the evidence in the record, that in June, 1859, the deceasel, Mary Davis, who was the mother of the defendant, executed and delivered to him a deed in consideration of natural love and affection, by which she gave unto him the money arising from a certain described judgment, and two notes therein mentioned, which is the money now sued for, and that the defendant claimed the money as his own property under that deed. The complainants attacked that deed on the ground that it was fraudulently procured by the defendant from his mother. The evidence in relation to this point in the case was conflicting. Mary Davis, the mother of defendant and maker of the deed of gift, died in June, 1871, twelve years after the making thereof, and the main question in the case is, whether the defendant was liable

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Davis et al. vs. Davis.

to be sued for the money in his hands, by the complainants, as an executor de son tort. The 2441st section of the Code, declares that “If any person, without authority of law, wrongfully meddles with, or converts to his own use, the personalty of a deceased individual, whose estate has no legal representative, he shall be held and deemed an executor in his own wrong,

and as such shall be liable to the creditors and heirs, or legatees of such estate, for double the value of the property so possessed or converted by him; nor shall such executor be allowed to set-off any debt due to him by the deceased, or voluntarily paid by him out of the assets.” It is quite apparent from the evidence in the record, that the defendant did not convert the money claimed by the complainants to his own use, after the death of Mary Davis. If he wrongfully converted it to his own use at all, that conversion took place, as against the rights of Mary Davis, twelve years before her death, and if the defendant acquired no title to the . property, she could have sued for it in her lifetime, or her administrator would have been the proper person to have sued for it after her death for the benefit of her heirs, and creditors,

if any.

If Mary Davis, the decedent, had conveyed the property to the defendant to defraud her creditors, they could have reached it in his hands during her life, and also might have reached it in his hands after her leath, by suing him as executor de son tort, as was held in the case of Clayton vs. Tucker, 20 Georgia Reports, 464, provided there was no administration on her estate. But the complainants are not creditors seeking to set aside a fraudulent conveyance made by the deceased to the defendant for the purpose of defraudling them, but they are the heirs of the deceased, seeking to recover money from the defendant as an executor de son tort, which they allege he wrongfully converted to his own use as against the rights of the deceased, Mary Davis, through whom they claim, twelve years before her death. In other words, they allege that the defendant became indebted to Mary Davis $1,600 00 for money wbich he wrongfully appropriated and

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