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Wright vs. Bessman.

reasonable demand of said mill, so as to keep it constantly running, and not to meet the demand of purchasers for lumber from said mill. How far the want of purchasers of the lumber sawed at the mill under the contract would

go

in mitigation of the plaintiff's damages is a different question.

Let the judgment of the court below be reversed.

JAMES K. WRIGHT, administrator, plaintiff in error, vs.

John W. BESSMAN, defendant in error.

55 187 59 184 59 185 66 535 66 537 71 173 83 684

55 187 97 588

55 187 103 522

1. The returns of an administrator admitted to record by the ordinary, are prima facie evidence for him, and the onus is on the objector to show them

incorrect. 2. The payee or holder of a note is an incompetent witness to testify that he

put the credit on it which kept it alive, by the authority and as agent of the

maker-the maker being dead. 3. A new promise, to prevent the bar of the statute of limitations, must be in

the hand-writing of the maker, or subscribed by him, or some one authorized by him, and the holder thereof cannot be the agent so authorized by him: 34 Georgia Reports, 245.

Administrators and executors. Witness. Promissory notes. Statute of limitations. Principal and agent. Before Judge BARTLETT. Morgan Superior Court. March Term, 1875.

Reported in the opinion.

A. G. & F. C. FOSTER, for plaintiff in error.

REESE & REESE, for defendant.

JACKSON, Judge.

The administrator applied for letters of dismission. Bessman, a creditor of intestate, objected, on the ground that the administrator had misapplied the assets of the estate in this, that he had paid off a note barred by the statute of limitations, and had thus made himself responsible to creditors and could not be discharged until the claim of objector was paid

•Wright vs. Bessman.

to the extent of the misapplied fund. The jury, under the charge of the court, found against the discharge; the administrator moved for a new trial on many grounds, but which we think may be reduced to three: :

1st. That the court erred in ruling that the return of the administrator is not prima facie evidence of its correctness after it is approved and entered of record by the ordinary.

2d. That the court erred in excluding the testimony of High, the payee of the note, that the credit thereon was made by him by the direction of the intestate.

3d. Which is the main question in the case, that the court erred in ruling that the credit on the note which kept it alive, if alive at all, as it was not signed at all, must be in the handwriting of the intestate. It was admitted not to be in his hand writing, and the case turns on whether it could be proved that he authorized the payee to put the credit on for him so as to keep the note alive.

1. As to the first ground, we think the returns allowed by the ordinary are prima facie evidence for the administrator, and that the same must be rebutted by proof, the onus being upon the objector: Code, section 2527.

2. As to the second point, we think that the court was right in rejecting the testimony of High. The other party to the transaction on which the case turned was dead, and the reason and spirit of the exception in section 3854 of the Code, applies. Besides, the very object of requiring the credit to be put on by the maker of the note to prevent the bar of the statute, would be defeated, if the payee, after the death of the maker especially, were permitted to swear that he, as the agent of the dead maker, put the credit upon the note: Code, section 3854; Shumate vs. Williamson, 34 Georgia Reports, 245.

3. But if High had been competent as a witness, he could not have been the agent under the ruling in Shumate vs. Williamson. So that if it had been proved by him that he put the credit there by authority of the intestate, it would be as if it had not been put there at all. While, therefore, the court

Brown vs. Bennett.

may have committed errors, on the main questions he ruled right; and as the verdict of the jury under the admitted facts must have been as it is in any event, we affirm the judgment of the court below in overruling the motion for a new trial.

Judgment affirmed.

GEORGE A. Brown, plaintiff in error, vs. JAMES M. BEN

NETT, defendant in error.

55 189 56 220 65 253

55 189 104 643

There is no law which will authorize the decree of a court of equity to be set

aside for defective allegations in the bill, or for defective pleadings, on motion, as may be done with judgments at common law, under the provisions of the Code. The proper remedy is by bill of review.

Equity. Practice in the Superior Court. Motion. Decrees. Judgments. Before Judge CLARK. Sumter Superior Court. October Adjourned Term, 1875.

Reported in the decision.

HAWKINS & HAWKINS; N. A. Smith, for plaivtiff in error.

PEABODY & BRANNON, by brief, for defendant.

WARNER, Chief Justice.

This was a motion to set aside a decree made by a court of equity in favor of Brown, the complainant, against Bennett, one of the defendants therein. The motion to set aside the decree was based on two grounds: First, that the defendant, Bennett, had never been served with process in said case. Second, because the allegations in said bill make out no case upon which a decree could have been rendered against the defendant, Bennett, and there is no prayer in said bill as against him. On the hearing of the motion, the court, from the evidence before it, held that the defendant, Bennett, had been served with process, and overruled that ground of the motion

Brown vs. Bennett.

to set aside the decree. The court sustained the motion to set aside the decree on the ground that there was no allegation in said bill charging Bennett, and no relief prayed for against him. To which judgment and decision of the court setting aside said decree, Brown, the complainant in the bill, excepted.

It appears from the record before us, that the bill was filed by the complainant against Furlow, Price & Furlow, partners, who resided in the county of Sumter, and the defendant, who resided in the county of Glynn, in which it is alleged that defendant, Bennett, owed complainant, $500 00, to secure the payment of which he bad executed to him a mortgage on a vegro girl named Margaret; that after the execution and record of said mortgage, the defendant, Bennett, placed the said negro in the possession of Price to secure a debt said to be due by him to the firm of Furlow, Price & Furlow; that Price, one of the said firm, run off said negro, or has sold her and received the proceeds of such sale, whereby she is placed beyond the reach of his mortgage fi. fa.; that the defendants, Furlow, Price & Furlow, pretend that said defendant, Bennett, conveyed to them said negro prior to the date of said mortgage to secure them in accepting paper for the defendant, Bennett, etc.; that the defendant, Bennett, is insolvent. The prayer of the bill is, that the defendants may be compelled to prodluce said negro, and in default thereof, that they be decreed to pay the complainant the amount of his mortgage debt, and that complainant may have such other and further relief in the premises as the court may deem just and proper. This bill was filed 9th February, 1856. On the hearing in October, 1872, the jury found a verdict in favor of Furlow, Price & Furlow, against the defendant, Bennett, for $500 00, the amount of the debt, with interest, and a decree was entered thereon 8th March, 1873. The court having found that the defendant, Bennett, was served with process, it may well be questioned whether, in contemplation of law, he is not to be considered as having been before the court when the decree was rendered against him, and failing to except thereto on the ground contained in his present motion, he is not con

O'Connell vs. The State of Georgia.

cluded by that decree. But be that as it may, we are not aware of

any

law which will authorize a court to set aside the decree of a court of equity for defective allegations in the bill, or for defective pleadings, on motion, as may be done as to common law judgments, under the provisions of the Code. If it appears on the face of the proceedings in an equity cause that the same are so defective that no valid decree could have been rendered thereon, then the proper remedy is by a bill of review to set aside the decree, and not by a mere motion as was done in this case. As before remarked, we are not aware of any law which would have authorized the court to have set aside the complainant's decree on the ground stated in its judgment on a mere motion, and for that reason we reverse the judgment setting it aside.

Let the judgment of the court below be reversed.

DENNIS O'CONNELL, plaintiff in error, vs. THE STATE OF

GEORGIA, defendant in error.

55 191 62 167 76 467 83 380

55 191 102 452

Where the defendant was indicted on two counts for simple larceny and re

ceiving stolen goods, knowing them to have been stolen, the gist of the offense in the last count is the felonious knowledge that the goods were stolen, and if the jury find a special verdict of "guilty of receiving stolen goods," without more, the verdict is bad, and the judgment will be arrested: See 28 Georgia, 367.

Criminal law. Receiving stolen goods. Verdict. Before Judge BARTLETT. Chatham Superior Court February Term, 1875.

Reported in the opinion.

Rufus E. LESTER; M. J. O'DONOGHUE, for plaintiff in

error.

W. G. CHARLTON, solicitor general pro tem., for the state.

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