Parsons vs. Thrasher.

Parson's could not have the land conveyed to him before he had paid said note.

A new trial was moved for upon the grounds that the charge as given was erroneous; that the failure to give the charge requested was error, and that the verdict was contrary to the evidence, etc. A new trial was ordered and this is assigned as error.

HOGE & SPRAYBERRY, for plaintiffs in error.

BAUGH & THRASHER, for defendants in error.
HARRIS, J.

The bill filed in this case by Parsons, was for specific performance-to compel Thrasher to make titles to lands purchased by complainant from him. It alleged that the notes given for the purchase money were infected with usury; and that if the transaction was freed from it, it would be found that the principal and legal interest of the purchase money had been paid by Parsons. If this allegation shall be sustained by proof we do not see why Thrasher should not be compelled to comply with his contract. The answer of Thrasher, however, sets up that a note of Parson's remains unpaid; that the note had been before it was due, negotiated by him to McIntyre & Brother, with his guaranty of it, and that the land sold to Parsons was liable to its payment.

The case was tried, and the Judge not being satisfied with some of his rulings in the progress of the case, granted a new trial.

Without the expression of any opinion whatever, as to the right of complainant to a specific performance, until the note guaranteed by Thrasher shall have been taken up by complainant, we simply declare our unwillingness to interfere with the grant of a new trial, as its design was that both parties might be heard to better advantage and the principles involved be more carefully considered.

Judgment affirmed.

INDEX.

ABSENCE-Of party. See Continuance, 1.
Of Attorney. See Continuance, 4.

ACCOUNT.

An account is assignable, so as to vest the legal title and right of action in the assignee. WALKER, J. Mordecai vs. Stewart......

ACQUIESCENCE. See Waiver.

ACTION EX DELICTO. See Attachment, 12.

See Practice, 5.

ACTUS DEI. See Attachment, 9.
See Executors, 3.

ADMINISTRATION OF ESTATES.

See Distribution of Estates.

See Equity, 8, 9.

ADVERSE POSSESSION. See Ejectment, 1.

AFFIDAVIT.

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Affidavit for Attachment. See Attachment, 2, 3, 6, 12, 13, 14. See Distress Warrant.

ALIEN ENEMY. See Confiscation.

ALTERATION OF JUDGMENT.

See Arrest of Judgment, 4.

ALLOWANCE. See Year's Support.
See Assignment, 1.

AMENDMENT.

1. A substantial compliance with the requirements of
the attachment laws, is sufficient; and the bond given
by the plaintiff is amendable by the consent of the
sureties thereto. Irvin, Administrator, vs. Howard.. 18
2. Declarations in attachment are amendable, as in
other cases at common law. Ib.

3. After a brief of the evidence had been filed under the
supervision of the Judge, and some months had elapsed,
a motion to amend the brief as to one witness' evi-
dence, (founded upon an averment that it was incor-
rectly stated, which averment was supported by an
affidavit of said witness,) was properly overruled.
Baker et al. vs. Wright et uxor....

ANSWER IN CHANCERY-EFFECT OF

WAIVER.

See Equity Practice, 18.

APPEALS.

A new trial may be granted after trial before a petit
jury. When one is tendered as security on the ap-
peal bond who is not a property security under the
law, the Clerk who takes the bond should refuse to
accept him. And if the omission of the Clerk to re-
ject such security misleads the appellant, and prevents
him from giving proper security, when, in good faith,
he intends appealing, and the appellant makes these
things appear to the Court, even after the adjourn-
ment of the Court, a new trial will be granted. The
Eufaula Home Insurance Company vs. Plant & Cub-
bedge...

ARBITRATION.

An agreement for arbitration being made in Tennessee,
its validity and construction in the Courts of Georgia
depend on the laws of Tennessee. By the laws of
Tennessee an award in parol may be good. Green vs.
East Tennessee and Georgia Railroad......

ARREST OF JUDGMENT.

1. Even if the award was erroneous, the fi. fa. issued
therefrom could not be arrested by oath of illegality

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672

456

in consequence of such error in the judgment. Green vs. Shields......

:

2. A motion to arrest a judgment was based on the
grounds 1st. Because it is not charged in the first
count of the indictment that the person or persons
assaulted was or were in the peace of the State, or
that the defendants were of sound memory and discre-
tion. 2d. Because the two counts contain charges of
two crimes dissimilar in kind and character, and of
a different nature. 3d. Because the assault and
shooting are charged to have been committed on two
persons; and 4th. Because Jones is charged as principal
and Scott as accessory before the fact, etc., in the same
count: Held, that if said grounds had any substan-
tial weight at all, they should have been taken before
the case was submitted to the jury; certainly, under
our Code and practice, they cannot be considered on a
motion in arrest of judgment. Jones et al. vs. The
State........

3. An indictment should be "in the name and behalf
of the citizens of Georgia ;" if these words be omitted,
on exception taken at the proper time, the indictment
will be quashed; such exception is not good in arrest
of judgment. Horne et al. vs. The State.....
4. The Legislature has no power to alter or modify
any judgment of the Superior Courts of this State, or
by law to arrest or suspend the enforcement of such
judgments. Aycock et al. vs. Martin et. al........

ASSENT. See Auditor, 1, 2.

See Waiver, 1.

ASSIGNMENT.

1. S., by deed, conveyed to G. all his personal property in trust; first, to pay all the creditors of S., and then to pay the surplus to the sisters of S.; G. took possession in the lifetime of S., and, after his death, was proceeding to execute said trusts, when the widow of S., having notified his administrator of her claim of her year's support out of said property, said administrator filed a bill, praying that G. be enjoined from disposing of the property, and that the same be delivered to him as administrator: Held, that S., having, by said deed, parted absolutely with said property, his widow had no claim upon it, and the

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