Thompson vs. The Georgia Railroad and Banking Company. assumed in the motion for a new trial is somewhat questionable." The probability is that the overruling spoken of was a refusal to make the rule absolute, but be that as it may, the case decides nothing.

In Bowie vs. The State, 19 Georgia Reports, 1, there was a direct decision that a charge of the court alleged in the motion, but not otherwise verified, where there was a want of certainty that the charge, if given, was hurtful to the party complaining of it, would afford no ground for granting a new trial by the supreme court. The question of verifying the charge being blended with that of its want of materiality, the decision aids but little in the present inquiry. Besides, in the preceding case, the report fails to show whether a rule nisi was or was not granted.

King vs. The State, 21 Georgia Reports, 220, is another case in which the report is silent as to the grant or refusal of a rule nisi. The motion for a new trial, as one of the grounds of the application, alleged that the court erred in refusing to allow a certain question to be propounded to the prosecutor. It was ruled that it did not appear to this court that any such question was propounded, and that there was nothing in the record to sustain that ground in the motion.

In Cameron vs. Ward, 22 Georgia Reports, 168, the rule nisi was disallowed by the court, and that fact is assigned as one of the reasons for not accepting the recitals as authentic.

The later case of Holland vs. Chambers, in the same volume, page 193, contains a very clear and distinct enunciation of the doctrine that granting the rule nisi authenticates everything. Judge MCDONALD, in the first paragraph of his opinion, speaks thus: "The court granted the rule nisi, and his having granted it is equivalent to a certificate on the part of the presiding judge that what transpired on the trial, so far as it is stated in the rule, is stated correctly." Accordingly, the court, in that case, went forward and passed upon all the matters set out in the rule, treating them as true. It does not appear from the report of the case that any point was made by counsel on the bill of exceptions, and I think it

Thompson vs. The Georgia Railroad and Banking Company.

is to be understood that none was in fact made, for there is nothing in the head-notes to the opinion which refers to this subject. Most probably, therefore, this ruling of the court was without argument.

MeLain & West vs. Densmore & Kyle, 30 Georgia Reports, 724, and Stone vs. Bancroft & Chamberlain, Ibid., 860, are strongly on the line of requiring direct verification in the bill of exceptions; but in neither of these cases does it appear that a rule nisi was granted. There is, however, an express and controlling adjudication, upon the very point now before us, in the case of Olive vs. Herrington, 33 Georgia Reports, 580. There, as here, the rule nisi had been granted. Judge LUMPKIN, in delivering the opinion, used the following language: "There was a motion made for a new trial, and many of the grounds are for charges alleged to have been made, for refusals to charge, and because the jury found contrary to the charges given, whereas, it does not appear that any charge was given or refused by the court. True, the fact is assumed in the rule nisi, and sundry decisions said to be made by the court are therein recited. But his honor, the presiding judge, refused to make the rule absolute, nor does he anywhere certify to this court that the grounds taken in the rule nisi are true; he overruled the motion because there was abundant evidence to sustain the verdict. We do not sit here to discuss and decide abstract questions of law, but to investigate alleged errors committed by the court below, and we must be assured, upon the authority of the court itself, what the errors complained of are before we can be called upon to reverse them. Suppose we were to hold that upon some of the grounds taken in the rule nisi there were fatal errors, which required the correction of this court, his honor might well reply, I have not certified to the supreme court that these errors, fatal in their opinion, were committed by me, our mouths would be closed."

We think that since this case of Olive vs. Herrington it has not been an open question in this court, that the recitals in the rule nisi, when the objection has been insisted on here by counsel

Thompson vs. The Georgia Railroad and Banking Company.

at the proper time, have stood in need of further verification, whether the rule nisi was granted or not, unless the court below went further and made the rule absolute. See 46 Georgia Reports, 159; 47 Ibid., 625; 48 Ibid., 425.

If the case of Harrison vs. Hatcher, 44 Georgia Reports, 638, be thought an instance to the contrary, it is only necessary to read the case carefully to see that it is not. There appears to have been no objection urged by counsel, at any time, to considering the unverified grounds in the motion for new trial because they were not verified. The difficulty seems to have arisen when the case came to be taken up by the two judges who presided in it, for decision. They were embarrassed in their efforts to get at the truth, and concluded at last, as there was only a motion, and no rule nisi, to treat the judgment overruling the motion as in the nature of a judgment sustaining a demurrer to the motion and assuming as true all the facts stated. If there had been a rule nisi, what the court would have done does not appear; nor does it appear what the court would have done if the counsel for defendant in error, instead of arguing the grounds of the motion on their merits, had taken the point, and insisted upon it, that the unverified matters were not properly authenticated, and therefore not here for consideration. If this view of the case is not correct, and the decision in Harrison vs. Hatcher is opposed to the cases in 33 Georgia Reports, 46 Ibid., 47 Ibid., and 48 Ibid., supra, then is that case borne down by the weight of the others as authority.

We put our decision mainly upon authority, holding that on questions of practice, as well as on other questions, we are bound to make an honest, candid search after the law, and simply declare it as we find it. A majority of the court (the chief justice and myself) are, however, well satisfied with the rule upon principle, and would probably, if the question were res integra, decide it the same way. A motion for new trial is mere pleading: 17 Georgia Reports, 141; the movant can apply for a new trial for any and all reasons that he is disposed to allege; he has as wide a range as he has in his original

Thompson vs. The Georgia Railroad and Banking Company.

declaration, and the court has no power to restrict him; he can present his motion ex parte and obtain a rule nisi in the absence of his adversary and without any notice to him whatever: 21 Georgia Reports, 214; and it has been held by this court that the better practice is, if the motion sets forth any ground that is prima facie sufficient, to grant the rule nisi and let all the grounds stand over for consideration at the final hearing: 10 Georgia Reports, 82. It is not the practice for the opposite party to make any written response to the rule, or to the grounds of the motion, so that what he urges by way of objection is not matter of record; and there is no law requiring the court, in refusing a rule absolute, to assign any reason for its action whatever, or to pass any judgment pronouncing the grounds of the motion untrue. The party has a right, in his bill of exceptions, and in that only, to bring the judge to a full and clear showing on the whole truth of his case. If the grounds of his motion were in fact true, and he will so allege in the bill of exceptions, the judge must and will certify to their truth. Until it comes to giving a bill of exceptions the judge may lawfully maintain whatever silence he pleases, but then the party searches him, and the law forces him to speak out.

All that can be inferred from the grant of a supersedeas is, that the judge, in one or more of the eight ground stated in the motion, saw something which he deemed sufficiently important to warrant him in delaying the officers of court in the collection of their costs until the further hearing of the rule.

It is said that the rule nisi was entered upon the minutes. Doubtless it was, although this fact does not affirmatively appear in the record. Being an act of the court, it should have been recorded on the minutes, but that would not aid it as a means of verifying the recitals. Let it be called a judgment of the court, but what does it adjudge? It certainly does not adjudge absolutely the truth of the matters of fact alleged in the motion, for if it did, the absent party, and even the court itself, would be bound by it. Construed in the light of the course of practice recommended in the case cited

Van Dyke vs. Martin et al.

above, from the 10 Georgia Reports, the most that it can be said to adjudge is, that some one or more of the grounds of the motion were, prima facie, good.

The motion of defendant's counsel to restict the judgment of review in this court to the two grounds alleging the verdict to be contrary to the evidence and the weight of evidence, and contrary to law, must prevail. And in reference to these two grounds we find no error in refusing a new trial. We think the verdiet well supported by the evidence, and we know of no principle of law that it violates. Judgment affirmed.

JACKSON, Judge, concurring.

It is hardly necessary for me to say, after the opinion just delivered by my brother and associate, Judge BLECKLEY, that I acquiesce in the judgment confining this bill of exceptions to the single issue of whether the verdict be against the law and the evidence, with great reluctance. I only concur because the authority of the unanimous opinion of this court in the case of Olive vs. Herrington, 33 Georgia Reports, 580, binds me. But for that, and what I consider the spirit of subsequent adjudications on the point, I should hold this bill of exceptions good throughout. My mind abhors technicalities, and I do not approve the judgment on principle.

M. H. VANDYKE, plaintiff in error, vs. B. A. MARTIN et al., defendants in error.

1. The final trial of an important cause involving the examination of many witnesses, the investigation of numerous facts, and the application of legal principles, should be full, thorough and deliberate; and such a trial, coming on at an advanced hour on Saturday, the last day of the term, should be postponed till the next term, at the instance of counsel for either party; or, if that be denied, the court should be careful not to exact a brevity in argument on the part of objecting counsel, disproportionate to the materials to be handled and the labor requisite to ample discussion.