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McClure et al. vs. Smith.

2. The sheriff, after making an arrest under a bench warrant for misdemeanor, having taken bail, approved the bond, and discharged the prisoner, has no power subsequently, although he has not returned the bond to the clerk's office, to stipulate with the sureties, for their protection, to add other sureties to the bond; and his failure to comply with such an undertaking is no bar to a judgment of forfeiture in behalf of the state.

Practice in the Superior Court. Bill of exceptions. Criminal law. Bond. Bail. Sheriff. Before Judge KNIGHT. Union Superior Court. May Term, 1875.

Reported in the opinion.

THOMAS F. GREER, for plaintiffs in error.

C. D. PHILLIPS, solicitor general, for the state.

BLECKLEY, Judge.

1. The complaint is that a plea was stricken. The contents of the plea are misrecited in the bill of exceptions, and it was upon the misrecitals that counsel for plaintiffs in error seemed to rely, chiefly, in his argument before this court. The sole authority to which he referred was 6 Georgia Reports, 202, which relates to incomplete bonds, or bonds not finally and unconditionally delivered. That authority might be pertinent if the plea in the present case was what the bill of exceptions represents it to be; but it is not. The plea, as set out at full length in the transcript of the record, ought to govern and will govern, and it alone will be looked to. The copy there found is to be deemed complete and correct. It is not the office of the bill of exceptions to give either a copy or a summary of the pleadings, and when it professes to do either, it is subject to be checked, or even wholly contradicted, by the record: 44 Georgia Reports, 620.

2. The bond shows on its face that an arrest had been made under a bench warrant for the offense of adultery, and that the obligation of the bail (plaintiffs in error) was that their principal should appear at the court and not depart without leave of the court. On scire facias brought to en

McClure et al. vs. Smith.

force the bond, they pleaded, not that it was incomplete, or that it had never been delivered, or that it was not their act or deed, or that the condition had been performed, but that they signed it with the understanding that it was to be void if the principal appeared next day; that he did so appear and desired them not to lift the bond but to continue to stand, promising that he would get other signatures to it; that they agreed the bond might remain theirs provided this promise were complied with; that the sheriff, who then had the bond in his possession, said he had authority to sign the names of other good sureties, (specifying them) and would do so, and that plaintiffs in error might go home and all should be right; and that, relying upon these promises, and fully believing that the sheriff would see them complied with before returning the bond into court, they, the plaintiffs in error, agreed that the bond might remain theirs. This is the substance of the plea, which, on motion of the state's counsel, was stricken as not presenting any legal defense in behalf of the bail.

The sheriff was competent to take the bond and admit his prisoner to bail: Code, section 4727. He had authority to approve the sureties, and the bond shows on its face that he did approve them. It is plainly inferable from the plea that this bond was made complete in every particular, and that the prisoner was discharged under it and appeared under it on the next day. The law gives the sheriff no power over such a bond after he has taken and approved it, and after he has discharged the prisoner in consequence thereof, except to return it to the court or into the clerk's office. He was no longer the agent of the state for any other purpose. The bail could not extinguish or modify their liability except by surrendering their principal, and this they neither did nor attempted. They chose to retain him in their friendly custody. Instead of performing the stipulations of their written contract, they trusted to their principal and to the sheriff to add new parties. In this undertaking the sheriff acted outside of his official functions; and if he became the agent of any body, it was of

VOL. LVI. 29.

Saunders vs. Bell.

the plaintiffs in error themselves. They trusted him, and if he has injured them by proving unfaithful, they must look to him for redress. For myself, I am confident that so far from the public being bound by the sheriff's promise to strengthen the bond, it would have been a clear violation of his official duty to have suffered any change made in the bond or in the parties. It was the state's document and not his. After it once became complete as a contract, he had no right to tamper with it.

The judge below was right in striking the plea, and his judgment is affirmed.

SARAH CAUNDERS, administratrix, plaintiff in error, vs. JAMES W. BELL, executor, defendant in error.

Where, at an administrator's sale, property is bid off and the bidder refuses to take it, and the administrator elects to resell and proceed against the first purchaser for the deficiency arising from such sale, he must resell the property as soon as practicable, and if he delay, without the consent of the bidder, for twelve months, on the ground of stringency of the times, such delay will forfeit his right to recover, and a non-suit will be properly awarded.

Administrators and executors. Sales. Before Judge CLARK. Webster Superior Court. September Term, 1874.

Reported in the opinion.

B. S. WORRILL; J. L. WIMBERLY, for plaintiff in error.

W. A. HAWKINS, for defendant.

JACKSON, Judge.

Bell, the

The administratrix offered for sale certain lands. defendant, bid them off at a certain price, and afterwards, for reasons not necessary in this opinion to be considered, declined to take them. The land was offered again for sale

Saunders vs. Bell.

twelve months after the first sale and first bid without the assent of Bell, and knocked off at a certain other price considerably less than Bell's bid at the first sale, and suit was brought against Bell for the difference. After the plaintiff's proof the court awarded a non-suit, among other reasons, because the administratrix, without the consent of the defendant, had not put up the land for resale until twelve months had elapsed from the time of the first sale. The excuse offered by the administratrix was the stringency of the money market and hardness of the times.

We think that the court properly granted the non-suit. The land should have been offered for sale again as soon as practicable. Any unreasonable delay, without the assent of the bidder, would put it in the power of the estate to speculate upon the bidder by selecting such time to resell as would be to the interest of the estate and adverse to that of the bidder. The right of recovery turns on the loss to the estate by reason of the failure of the bidder to comply with his contract, and that loss must be ascertained by the resale as soon as it can be reasonably done. If the bidder, on the day of sale, refuses to comply before the crowd disperses and the hours of sale terminate, that day is the proper time to resell; if that cannot be done, just so soon as the property can be readvertised after notice of refusal to comply with the terms of sale. But whenever the administratrix takes the whole arrangement out of the co-operation of the bidder, and puts off the sale, for reasons that she alone judges to be sufficient, to a period of twelve months, she forfeits all right of recovery for the difference between the two bids. It will be seen that the statute gives her the option to sue at once for the whole bid, tendering compliance on her part, or to resell, and sue for the difference. When she elects the latter course, as in this case she has done, she must resell as soon as practicable: Code, section 3655. This view of the law controls this case and makes it unnecessary to consider the other points made in the record.

Judgment affirmed.

McDaniel vs. Edwards.

JULIET MCDANIEL, plaintiff in error, vs. MARION C. EDWARDS, defendant in error.

1. After a sale of land for distribution by an executor, under an order of the court of ordinary, it stands discharged of prior judgment liens against one of the legatees, whose interest therein, under the will, was one equal undivided share with several other legatees.

2. A mere general objection to testimony will not be considered in the supreme court, no ground of objection being stated in the record or in the bill of exceptions: 47 Georgia Reports, 99.

Administrators and executors.

Judgments. Practice in

the Supreme Court. Evidence. Before Judge CRAWFORD. Muscogee Superior Court. November Term, 1875.

Reported in the opinion.

L. T. DOWNING, for plaintiff in error.

LITTLE & CRAWFORD, by brief, for defendant.

BLECKLEY, Judge.

A will was made in 1841, directing that property, real and personal, be kept together in the possession of testator's wife during her life or widowhood, then to be equally divided between his ten children, one of whom was John W. Edwards. The testator died in the same year. His wife died in 1869, at which time some personal property and a tract of land covered by the will remained undivided and unadministered. No debts were then outstanding, and the legatees were of full age. Some of them had died leaving minor children. In 1870, John W. Edwards, as executor, sold the land under an order from the court of ordinary, for distribution. It was purchased by the present claimant, and the executor conveyed it to him by deed and gave him possession. There was, at that time, a judgment against John W. Edwards, not as executor, but individually, in favor of the plaintiff, Juliet McDaniel, which was rendered in 1868. Execution founded thereon was levied, in March, 1874, upon an undivided one

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