Frith vs. Frith.

fessions of the wife herself, that the ground taken in the libel was true. The Court rejected the evidence and granted ten dollars per month as temporary alimony, and one hundred dollars for Attorney's fees. This decision is assigned as

error.

The same point was made in other assignments.

H. HOLT, for plaintiff in error.

DOUGLAS, for defendant in error.

By the Court.-BENNING, J. delivering the opinion.

[1] Was the husband, under the particular facts of this case, bound to supply to the wife temporary alimony; and, also, a sum sufficient to pay her Attorneys their fees? This is the sole question.

It was insisted, for the husband, that as the wife, in the marriage, had practised a fraud upon him, which fraud he was able to prove by her own confessions, as well as by other evidence, he was not.

But we do not see that this distinguishes his case from the cases in which the husband has been held to be so bound. This, if true, amounts only to the making out of a case, on the part of the husband, which will give him a title to a divorce. And if, when the husband says he is able to make out such a case as that, he is to be relieved from alimony, and the expenses of the wife's side of the suit, then the number of cases in which he will not relieve himself from such alimony and expenses, will probably be small.

In McGee vs. McGee, (10 Ga. R. 478,) a case in which the husband was the defendent in the libel, the husband answered, on oath, denying the ground of the libel, and offering, as he said he had repeatedly done before, to receive the wife again into his house; yet, he was made to pay alimony. To the same effect are Methrin vs. Methvin, (15 Ga. R. 98) and Roseberry vs. Roseberry, (17 Ga. R. 139.)

The rule is thus stated by Shelford: "After proof of a

Winter vs. The State.

marriage in fact, alimony, pending the suit, will be allotted, whether it be commenced by or against the husband, not only in cases of impotency, but in all cases of nullity of marriage, and in suits for restitution of conjugal rights, or for divorce, by reason of adultery or cruelty." And this statement of the rule seems to be well supported by decided cases. I refer, particularly, to Portsmouth vs. Portsmouth, (3 Ad. 63,) and Bird vs. Bird, (1 Lee, 209.)

According to this last case, this Court, in Roseberry vs. Roseberry, went too far in permitting the husband to object to the payment of the alimony; that the marriage, though a marriage de facto, was not one de jure.

We think, therefore, that the Court below was right in refusing to receive the husband's offered proof.

No. 27.-JOHN G. WINTER, plaintiff in error, vs. THE STATE OF GEORGIA, defendant.

[1.] Where a party or his Counsel are taken by surprise, by a misunder→ standing of the Court, it is good ground for setting aside an order or judgment of the Court resulting from such mistake.

Motion, in Muscogee Superior Court. Decision by Judge WORRELL, December Term, 1854.

At June Term, the case of the State vs. Winter being called, and there being no appearance, a rule nisi was taken to forfeit his recognizance. At December Term, a motion was made to set aside this rule nisi, on the following facts: Winter was very ill at the time the case was called, and unable to attend the Court. His Counsel, R. J. Moses, was also absent, the Court having announced, as he understood him,

Winter vs. The State.

that Judge Perkins would preside during the week, and no criminal case would be taken up. Mr. Moses had communicated this fact to Winter. Judge Crawford, who was the then presiding Judge, stated that he did announce that he expected Judge Perkins, and in the event of his coming, certain specified cases would be tried, but that his announcement was conditional. Several affidavits were submitted to show that others understood Judge Crawford in the same way with Mr. Moses.

The Court refused to grant the motion, and this decision is assigned as error. .

Judge BENNING having been of Counsel, did not preside.

S. JONES and H. HOLT, for plaintiff in error.

DOUGHERTY, for defendant in error.

By the Curt.-LUMPKIN, J. delivering the opinion.

[1.] Ought the judgment of forfeiture in this case have been set aside? We think so, most clearly.

That Winter was prevented by Providential cause from attending Court, is not disputed; and the only question is, has he rendered a satisfactory reason for not making his situation known to the Court when his case was called for trial?

He was informed by his Counsel, that the presiding Judge had announced publicly, from the Bench, that no criminal case would be tried that week; and there is a large amount of proof to show that Judge Crawford was so understood by the bar and the by-standers. True, the Judge states that his announcement was conditional, provided Judge Perkins attended according to promise, to preside for him. By this mistake, Mr. Moses, the Attorney of Winter, was absent. Had he been present, he could have made known the situation of Winter, for he was cognizant of it. Owing to the same misapprehension, Winter was lulled into security, and failed to furnish proof of his condition.

Jones vs. Lawrence.

And now, that it appears that these facts, or most of them, were brought to the mind of the Court, not only before the judgment of forfeiture was placed upon the minutes, but before, perhaps, the ink was dry in which it was written, (for the showing was made, in part, at least, on the same day that the order of forfeiture was granted,) we entertain no doubt but that the judgment of forfeiture should have been rescinded.

No. 28.-SEABORN JONES, plaintiff in error, vs. FRANCIS M. LAWRENCE, defendant in error.

[1] Our Statutes, authorizing the proceedings for foreclosure of a mortgage, direct that judgment shall be rendered only for "the amount which may be due." Under these Statutes, therefore, a provisional judgment cannot be rendered (when one instalment of a mortgage debt is due and unpaid,) on instalments which are not due; but resort may be had to a Court of Equity for such a judgment.

Rule, in Muscogee Superior Court. Decision by Judge WORRELL, December Term, 1854.

This was a proceeding to foreclose a mortgage given by Lawrence to Jones, to secure the payment of three notes, due respectively 25th day of December, 1853, 1854 and 1855. In the mortgage, was this clause-"It is further understood between the parties, that if said Lawrence shall fail to pay said notes, or any part thereof, that then the said Jones may foreclose this mortgage for the balance that may remain unpaid on said notes." But one of the notes was due when the petition was filed.

The motion was now made (January, 1855,) to foreclose for the whole amount of all the notes. The Court refused the motion, and this decision is assigned as error.

Jones vs. Lawrence.

Judge BENNING did not preside in this case.

J. JONES, for plaintiff in error.

There being no appearance for the defendant, the cause proceeded ex parte.

By the Court.-STARNES, J. delivering the opinion.

[1.] This was a proceeding instituted under and by virtue of the 17th section of the Judiciary Act of 1799, and the Act of December 26th, 1836, providing for the foreclosure of mortgages on real estate. Those Acts, in authorizing a proceeding for the foreclosure of a mortgage, after providing that upon petition, a rule nisi shall be issued requiring the mortgager to pay the principal, interest, &c. due upon such mortgage, into Court, on or before the first day of the next term, direct that unless the same be paid, "the Court shall give judgment for the amount which may be due on such mortgage, and order the property to be sold," &c. These Statutes thus authorize a judgment of foreclosure for the amount which may be due, and for this only.

Where a debt is due by instalments, upon default made in the payment of one instalment, the mortgage may be foreclosed by proceedings known to a Court of Chancery, and a provisional decree be rendered suitable to the exigency of the case. The judgment when thus rendered, remains subject to the future order and direction of the Chancellor, and may be put into execution as the successive instalments become due. The right to do this in Equity, is put upon the ground, that a Court of Chancery abhors a multiplication of suits and of costs. It has been held, therefore, that "It is reasonable, since the plaintiff has been put to his suit to recover the instalment due," that he should have "a decree of foreclosure, to remain subject to the order of the Court upon a subsequent