Sale vs. Wingfield. anything it would be assets in their hands for distribution. A support of the family would claim the money, if any was recovered, before Sims' junior mortgage. An older judgment would take it. The record is silent whether the family have had a year's support, but it does disclose the fact that there were judgments in Deupree's own hands superior to the lien of this junior mortgage. This mortgage had no lien at all upon the cotton which was misapplied, and in case of distribution under the statute any general lien would be prior to it. But enough has been said to show that the action should be brought by the party in privity with Deupree, the party whose estate has been damaged by his breach of instructions, and that the recovery, if any, should be assets for distribution. In which event, which itself "grows small by degrees and beautifully less" the more we consider it, the chances of Sims to participate in those assets, thus by possibility recoverable, would be desperate indeed. Judgment affirmed. 55 622 59 232 67 385 71 534 T. ALEXANDER SALE, plaintiff in error, vs. JOHN T. WING- 1. Money was placed by W. in the hands of D. to be loaned to S. with which Held, that the mortgage debt was for the purchase money of the land covered thereby, and therefore, upon foreclosure, could be collected from the same notwithstanding a homestead had been set apart therein at the instance of the mortgagor. 2. The fact that a debt sought to be collected by the sale of land, a part of which has been set apart as a homestead, was only for a part of the purchase money therefor, the balance having been paid by the debtor, does not entitle him to an apportionment. The entire tract must be paid for before a homestead can be taken in any part. Homestead. Purchase money. Before Judge POTTLE. Wilkes Superior Court. June Adjourned Term, 1875. Sale vs. Wingfield. It is only necessary to state in this case that of the $425 00 in the hands of DuBose, the garnishee in the suit on the note, the court below allowed $200 00 to Sale as a part of his exemption of personalty, holding the balance to be subject to his debts. For the remaining facts, see the decision. F. H. COLLEY; S. H. HARDEMAN; JOHN C. REED, for plaintiff in error. R. TOOMBS, for defendant. WARNER, Chief Justice. This was a claim case, and a case in which a summons of garnishment had been issued. Both cases, by agreement of the parties, were submitted to the decision of the presiding judge as to the questions of fact and law involved therein. It appears from the evidence in the record that Wyley, the plaintiff's intestate, loaned Sale $4,000 00 in gold coin for the purchase of a tract of land containing one thousand two hundred and ninety-four acres, for which Sale and wife executed their promissory note, to secure the payment of which, Sale executed a mortgage on the land purchased, which mortgage was foreclosed and levied on the land, the claimant claiming two hundred and thirty acres thereof as a homestead exemption. The land for which the money was loaned by Wyley to Sale to purchase, was owned by Mrs. Simpson. Wyley placed the money in the hands of DuBose, with instructions to hold it until Sale procured a deed to the land from Mrs. Simpson, so that he could execute a valid mortgage on the land to secure the payment of the note. When Sale procured the deed to the land from Mrs. Simpson, DuBose wrote the mortgage and Sale executed it, and the money was then paid to Mrs. Simpson for the land. The mortgage was executed in December, 1870. In April, 1874, Sale, as the head of a family, obtained and had set apart two hundred and thirty acres of the land as a homestead exemption. In relation to Sale vs. Wingfield. the garnishment, it was admitted that DuBose, the garnishee, had in his hands $425 00 for the rent of the entire tract of land purchased by Sale from Mrs. Simpson for the year 1874, which had been paid by his tenant in advance for the rent of the land. The money for the rent of the land in DuBose' hands, paid him for Sale, was paid before any application for homestead exemption of personalty was made. The court decided that the land set apart as a homestead in realty was subject to the plaintiff's mortgage fi. fa., and that the money in the hands of DuBose, as garnishee, except the sum of $200 00, which was exempted as personalty was also subject to the plaintiff's fi. fa., whereupon the claimant excepted. 1. The debt which the mortgage on the land was given to secure, was for the purchase money of the land, and the execution which was issued on the judgment of foreclosure of that mortgage and levied on the land, on a part of which the homestead was located, is within one of the exceptions specified in the constitution, therefore it was subject to levy and sale in satisfaction of the plaintiff's mortgage fi. fa. 2. It is insisted that inasmuch as Sale paid $987 00 of the purchase money for the land, besides the sum included in Wyley's mortgage, that there should be an apportionment of the value of the homestead land to the other land not included in the homestead. There is some doubt, from the evidence of Simpson, whether the $987 00, paid by Sale, was paid for the land, or whether it was not paid for personal property on the place sold to Sale. But be that as it may, in our judgment, according to a fair interpretation of the constitution, a homestead cannot be taken on any part of one entire tract of land which has been purchased, so as to exempt the same from the payment of the purchase money due therefor. In other words, the entire tract of land purchased must be paid for before a homestead can be located on any portion thereof, and be exempted from the payment of the purchase money due therefor. The rent money in the hands of the garnishee belonged to Sale, and was subject to the payment of his debts. Let the judgment of the court below be affirmed. Jones vs. The State of Georgia. PONEY JONES, plaintiff in error, vs. THE STATE of Georgia, defendant in error. 1. The allegation that the offense was committed on an impossible day, or a day subsequent to the trial, does not make the indictment bad: 25 Georgia Reports, 515. 2. The entry of nolle, prosequi, and withdrawal from the jury of a criminal case, after it has been submitted to the jury on a good indictment, without the consent of the defendant, is error, and equivalent to an acquittal on a plea of former jeopardy. 3. A plea that defendant was put on trial for the same transaction under valid indictment for simple larceny, and the case nol. prossed, and withdrawn from the jury without his consent, is good in bar of a subsequent indictment for burglary. Having been in jeopardy of liberty once, he cannot be put in jeopardy again for the same transaction, save on his own motion for a new trial after conviction, or in case of mistrial. Criminal law. Indictment. Autrefois acquit. Before Judge KNIGHT. Lumpkin Superior Court. September Term, 1875. Reported in the opinion. WIER BOYD; ESTES & BOYD, for plaintiff in error. C. D. PHILLIPS, solicitor general, for the state. JACKSON, Judge. The defendant was indicted for simple larceny and put on trial. The indictment was nol. prossed without his consent, on the ground that the day on which the offense was laid was an impossible one, being subsequent to the trial. He was then indicted for burglary in the same transaction, and pleaded his former jeopardy on the indictment for larceny. The court overruled the plea and he was convicted of the burglary. A motion for a new trial was made on this and other grounds. disclosed in the record. That motion was refused by the court, and this refusal to grant the new trial is the error complained of. In the view we take of the case, it is unnecessary to consider any ground of the motion except the overruling this plea of former jeopardy. 1. The first question is, was the indictment for larceny good, 55 625 85 361 55 625 58 333 65 411 55 625 106 358 Sims vs. Kidd et al. or was it bad, because an impossible day was laid. This is not an open question with us. It had been ruled before and was ruled again at the last term in the case of Williams vs. The State. We there held the indictment good. 2. This indictment being good, the defendant was in jeopardy; his case had gone to the jury and could not be withdrawn without his consent at the option of the state by entering a nolle prosequi. Such withdrawal was equivalent to au acquittal of the charge of simple larceny: Reynolds vs. The State, 3 Georgia Reports, 53, 69; Code, section 4649. 3. His plea of former jeopardy alleges that the prosecution for burglary is on the same transaction or for the same offense. The demurrer admits its truth. If true, he was about to be tried for the same offense, the same transaction, under a different name. It has been repeatedly held by this court that this cannot be done under our constitution: Code, sec. 5000; Roberts & Copenhagen vs. The State, 14 Georgia Reports, 8, 11, 12; Copenhagen vs. The State, 15 Georgia Reports, 266 ; Holt vs. The State, 38 Ibid., 187, 189, 190; Black vs. The State, 36 Ibid., 447, 450; see also, 1 Bishop's Crim. Law, 683, 688, 689; Hopkins' Annotated Penal Laws, secs. 1574, 1575, 1577, et seq. We think, therefore, that upon authority, in our own state, particularly, inasmuch as the plea alleged the same offense in the simple larceny charge as in the subsequent charge of burglary, and as the court struck the plea on demurrer which admitted that the offense or transaction was the same, the court erred and the new trial should have been granted on this ground in the motion. Judgment reversed. 55 626 59 519 72 471 55 626 d97 785 55 626 f110 696 JAMES S. SIMS, plaintiff in error, vs. WILLIAM H. KIDD, for use, et al., defendants in error. 1. Where there is a fund left in the sheriff's hands, after satisfying the executions under which property was sold, and an order is given by the de |