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Crump vs. Williams.

relieved at that moment, as much as he would have been by the verdict of a jury. The new bill was a new case, for which and upon which a new recognizance should have been taken with new security, Camp or some one else. The solicitor, before he nol. pros'd the old bill, could lave held Camp bound to cause defendant to answer and appear, but the moment he nol. pros'd it, be lost his power over Camp. Before he nol. pros'd that bill and got the new one, he should have called the defendant and bound him over again. If the defendant had not appeared, Camp would have been liable then, because the case was pending on which he was surety, but when that case was nol. pros'd Camp was released.

All the facts were of record, the solicitor general and the court were bound to take knowledge of them, the court certifies their truth, and the record sustains his certificate. If, through inadvertence or haste, he granted the judgment of forfeiture, it is not the less error against the surety, and we must reverse the judgment.

Judgment reversed.

JAMES M. CRUMP, administrator, plaintiff in error, •vs. MA

RION W. WILLIAMS, defendant in error. 1. An administrator cannot be allowed to violate the law in the management

of'an estate, and then be heard to say, response to a rule to show cause why his letters should not be revoked, that such violation was for the ben

fit of the estate. 2. In such a proceeding against an administrator it was error to charge that

the jury should find for the movant if the respondent, or his securities, were likely to become insolvent. A removal on that ground is discretionary with the ordinary, and the jury, on appeal, should exercise the same

discretion. 3. An immaterial error is no ground of new trial.

Administrators and executors. New trial. Before Judge Rice. Franklin Superior Court. April Term, 1876.

Reported in the decision.

Crump vs. Williams.

J. B. ESTES; J. F. LANGSTON, for plaintiff in error.

S. P. THURMOND, for defendant.

WARNER, Chief Justice.

This was an appeal from the court of ordinary of Franklin county, on a rule to show cause why Crump, administrator de bonis non, with the will annexed, of Johnson Williams, deceased, should not be removed as administrator aforesaid, on the several grounds therein set forth. On the trial of the appeal in the superior court, the jury, under the charge of the court, found a verdict in favor of the movant; whereupon the administrator made a motion for a new trial on various grounds, which was overruled by the court, and the administrator excepted.

1. There is no conflict in the evidence that the administrator did not manage the estate as directed by the will of the testator, or in accordance with the requirements of the law, but it is insisted in his behalf, that although that may be so, still the estate was not injured, but on the contrary was benefitted by the illegal acts of the administrator. This defense by the administrator is not sufficient to prevent his removal under the provisions of the 2511th section of the Code. . An administrator cannot be allowed to violate the public law of the state in the management of the estate estrusted to him, and then be heard to say that such violation of the law was for the benefit of that estate, when calle.i on to show cause why his letters of administration should not be revoked.

2. The court erred, in our judgment, in charging the jury, “that if either the defendant or his securities are likely to become insolvent, then they should find for the plaintiff.” The removal of the administrator on that ground was discretionary with the ordinary, and the court should have charged the jury that they might so find.

3. But inasmuch as the uncontradicted evidence in the record is such as to require the verdict rendered by the jury,

Morris vs. Ogle.

on the other grounds alleged for the removal of the adıninistrator, notwithstanding the aforesaid error, we will not disturb it.

Let the judgment of the court below be affirmed.

JAMES S. MORRIS, plaintiff in error, vs. JAMES J. & MOSES

OGLE, defendants in error.

1. In the superior court, the trial of a case cannot proceed, over the objection

of the parties, without the presence of the necessary office papers, or of established copies. The defendant's counter-affidavit to the summary enforcement of a mechanic's lien, is a necessary paper, the issue on trial be

ing presented by it. 2. After a counter-affidavit to the enforcement of a mechanic's lien is received

by the sheriff, and the same, with the execution and levy and the order directing execution to issue, are returned by him to the clerk's office, all these papers are office papers of the superior court, and so remain until the trial directed by statute is had, and the matter is finally disposed of. Upon their loss from the office, that court may, at any time while the case is pending,

establish a copy of one or more of them, upon motion. 3. Unless the contrary appears, this court will presume that the superior court

had ample evidence that copies established were true copies.

Practice in the Superior Court. Mechanic's lien. Lost papers. Presumptions. Before Judge KNIGHT. Cobb Superior Court. November Term, 1875.

Reported in the opinion.

GEORGE N. LESTER; GARTRELL & DUNWOODY, for plaintiff in error.

W. P. McCLATCHY, for defendants.

BLECKLEY, Judge.

1. The enforcement of a mechanic's lien upon a gin-house, mill and the machinery therein, for labor and material furnished in building and repairing the gin-house and mill, was

Morris vs. Ogle.

resisted by a counter-affidavit, the proceeding itself being an execution founded, not upon a suit, but upon affidavits made by the creditors as mechanics. In other worrls, it was a summary foreclosure of mechanic's lien under the act of 1869, and the Code of 1868, section 1969. After the plaintiffs had submitted a part of their evidence, it was discovered that most of the papers pertaining to this case were missing-among them, the execution, with the sheriff's levy thereon, the order directing the execution to issue, and the defendant's counter-affidavit. The court proceeded with the trial, over the defendant's objection, without the presence of the papers, and without causing copies of any of them to be established. We cannot discover from the record that the court had any evidence of the contents of the papers, or that it was made aware what grounds were taken in the counteraffidavit. That affidavit, according to the Code of 1868, section 1970, presented the issue to be tried, and in its absence, with no copy of it, and no evidence of its contents, it would seem impossible for the court or the jury to have known precisely what was on trial. We certainly do not know from the record before us what was for trial, whether it was the amount of the claim, the justice of the claim, or the existence of the lien, or all three. It was competent, under the statute, for the affidavit to have traversed any one of these, or all of them together. The verdict found by the jury is for a specific sum of money, without any mention of the lien, and from this we might infer that the lien itself was not thought by the court and jury to be in controversy; but the record ought to have shown what was in controversy, and the trial should not have proceeled until that appeared. We rule that it was error to try the case without the original counter-affidavit or an established copy; and we think, also, that it would have been the better practice, even if not indispensable, to have required the other papers, if not found, to be established likewise before proceeding with the trial. The execution, the levy, and the order directing the execution to issue, ought to bave been before the court.

Braswell vs. Plummer.

2, 3. While a motion for new trial was pending, the court, on motion of the plaintiffs, and over the objection of the defendant, permitted a copy of the execution and of the order directing it to issue, to be established. That is assigned as one of the errors committed. It was not too late to establish these papers, though their establishment ought not to have influenced the action of the court upon the motion for new trial, and perhaps did not. The papers were of a sort to be established on motion. They were office papers of the superior court, having been returned there in connection with this case by the sheriff after the filing of the counter-affidavit, and before the trial was had. Their loss from the clerk's office was conceded. The defendant denied, but not under oath, that the copies about to be established were true copies; but we are bound to presume that his denial was not supported by evidence, and that the court granted the order to establish the copies on full and proper evidence that they were true. The evidence on this part of the case is not brought up in the record or bill of exceptions, and we therefore cannot pronounce upon it otherwise than by invoking this presumption.

The judgment overruling the motion for a new trial is reversel, upon the ground that the case was tried, over the defendant's objection, without the presence of the counter-affidavit or of an established copy. Other grounds of the motion relate to subsequent matters, which need not be passed upon, as this fundamental error vitiated all that was done up to verdict.

Judgment reversed.

EPHRIAM L. BRASWELL, plaintiff in error, vs. JAMES W.

PLUMMER, defendant in error. A bona fide purchaser of land, in possession thereof for four years, without

notice of any judgment or levy thereon, holds the land discharged from the lien of any judgment against the person from whom he purchased the

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