Bagwell and wife vs. Head.

eral Meade enforcing it, Bagwell attended at the times and place of holding Justice's Court for several months, intending to inform his attorney if any action was taken in the matter, but saw nothing done. In fact, the Justice, without notice to Bagwell, and clandestinely, dismissed the affidavit. On the 6th of August, 1869, said Johnson entered on said fi. fas. that said wagon had been taken from his possession, without his knowledge or consent, and that he could find no personal property on which to levy these fi. fas. The sheriff of Spalding county advertized said land for sale under said levy in November, 1868. Bagwell then applied to the Ordinary to have said land set apart as his homestead. Head resisted it, and his application was refused, and Bagwell appealed to the Superior Court.. At the trial, in August, 1869, Head's attorneys withdrew all objections, and said land was set apart as his homestead, according to law. The land is worth $300 00, and is all he and his wife have. They have no children. He further averred that the Justice and bailiff were but pretended officers, and said acts were void, because at their dates there was no legal civil government in this State.

Bagwell and his wife, upon these statements, prayed an injunction against said fi. fas., that the judgments be vacated, and Bagwell be allowed to defend against the notes, and that his said homestead be protected from sale. The Chancellor refused the injunction because the remedy was adequate at law. This is assigned as error.

D. N. MARTIN, by W. P. PRICE, for plaintiffs in error.

PEEPLES & STEWART, for defendant in error.

WARNER, J.

In looking through the record in this case, it is our judgment that the complainants had a complete and adequate remedy at law in regard to the several matters charged and set forth in this bill of complaint, and that the injunction prayed for was properly refused.

Let the judgment of the Court below be affirmed.

Wilcox & Company vs. Strong.

D. H. WILCOX & COMPANY, plaintiffs in error, vs. CHARLES STRONG, defendant in error.

When an action was instituted by the plaintiffs against the defendant, to recover the value of sundry bags of Phoenix Guano, and the defendant plead that the guano was not a merchantable article, and not reasonably suited to the use for which it was purchased and worthless as a fertilizer, and the jury, on the trial of the case, found a verdict for the defendant: Held, that this Court will not control the discretion of the Court below in refusing to grant a new trial, when there is sufficient evidence in the record to sustain the verdict, and no rule of law violated in allowing the evidence to go to the jury, or in the charge of the Court.

New Trial. Before Judge GREEN. Newton Superior Court. March Term, 1869.

D. H. Wilcox & COMPANY sued Strong for the price of sundry bags of Phoenix Guano sold him in 1866. He pleaded the general issue, and that plaintiffs represented the guano as a good fertilizer, when in fact it was worthless. There was at the trial no controversy as to the delivery, or price; plaintiffs showed by a witness that it was genuine Phoenix Guano, that it was a good fertilizer, that plaintiffs had sold it since 1861, and that it gave general satisfaction, and said it sometimes failed because of improper use, or drought, and that 1866 was a dry year.

For the defendant, one witness said he used such as a manure in 1860 and it was worthless. Another said he bought some of plaintiffs, in 1866, it was impure, had brick dust, etc., in it, and was worthless. Another said he bought some said to be from plaintiffs, and it was worthless. STRONG testified how he used it and that it was worthless. Two of his neighbors said it did Strong's crop no good, and one of them said his unmanured land, separated only by a fence from Strong's, where this article was used, bore as good a crop as Strong's did.

This comparison of crops and the evidence of use of such manures in 1860, were objected to, but allowed by the Court. And these witnesses told how Strong used the article, the quality of his land, the nature of the seasons, etc.

Camp vs. Baker.

In rebuttal, plaintiff proved what they had represented as to said article, examined over a dozen witnesses, who had, in different counties, used the article, bought of them in 1866, and found it a good manure, and one who said he thought it did good on Strong's land. The jury found for the defendant. The plaintiff's attorneys moved for a new trial, upon the ground that the Court erred in allowing the evidence objected to above, and because the verdict was strongly and decidedly against the weight of the evidence. The Court refused a new trial, and that is assigned as error.

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A. B. SIMMS, J. J. FLOYD, for plaintiffs in error.

CLARK & PACE, for defendant.

WARNER, J.

This Court has repeatedly ruled, that it will not control the discretion of the Court below, in refusing to grant a new trial, when there is sufficient evidence in the record to sustain the verdict, and no rule of law is violated, in allowing the evidence to go to the jury, or in the charge of the Court. There is sufficient evidence in this record to sustain the verdict which the jury have found.

Let the judgment of the Court below be affirmed.

HARRY CAMP, trustee, plaintiff in error, vs. Daniel N. BAKER, defendant in error.

On the trial of a scire facias to revive a dormant judgment, the defendant therein offered evidence to prove that the notes upon which the judgment was obtained were paid off before the rendition of the judgment, which evidence was rejected by the Court: Held, that the evidence so offered, without more, was properly rejected by the Court below.

Dormant judgment. Evidence. Before Judge GREEN. Newton Superior Court. September, 1869.

Camp vs. Baker.

In June, 1860, Baker obtained a judgment in said county against Harry Camp, trustee for Sarah A Camp, principal, and one Johnson, security, which became dormant. Scire facias was issued for its revival. Camp pleaded that the note upon which said judgment was founded was paid before judgment, and claimed the benefit of the Relief Law. At the trial, Camp's attorney moved to continue said cause, because of the absence of a witness by whom he could prove said payment. The continuance was refused. He then of fered to prove it by another witness, but the Court held that the evidence was inadmissible. No other evidence was offered and the judgment was revived.

The refusal to continue and the ruling out said evidence, are assigned as error.

A. B. SIMMS, for plaintiff in error.

W. W. CLARK, for defendant.

WARNER, J.

The error complained of in this case is, that the Court refused to allow the defendant, on the trial of a scire facias, to revive a dormant judgment, to prove that the notes upon which the judgment was obtained had been paid off before the rendition of the judgment. There was no error in the Court below in rejecting the evidence offered.

Let the judgment of the Court below be affirmed.

Jackson vs. Jackson.

R. H. JACKSON, administrator, plaintiff in error, vs. NANCY JACKSON, administratrix, defendant in error.

A suit was instituted on a note by Nancy Jackson, administratrix of James Jackson, against Robert H. Jackson, administrator of Alfred Jackson, and on the trial thereof Nancy Jackson was offered as a witness in relation to certain transactions which took place after the death of the respective intestates, touching the payment of the note, and other matters connected therewith: Held, that Nancy Jackson was a competent witness under the provisions of the Code, but that she could not testify as to any facts which came to her knowledge by reason of the confidential relation of husband and wife during her coverture as the wife of the intestate.

When there were three credits on the note sued on, one of which was uncertain and doubtful as to the amount and date thereof, and the jury found a verdict for the plaintiff for principal, interest and costs: Held, that the verdict was not sufficiently certain, according to the facts in this case, to authorize a judgment to be entered thereon for any definite sum.

When, on the trial of a case, one of the jurors appeared in the morning to be intoxicated, and the attention of the Court having been called to his condition, and the parties litigant consented to let him remain on the jury, and try the case in his then condition, but it appears by the affidavits of the bailiff and others, that, after the jury had been charged with the case in the evening of the same day, he left the jury and drank more liquor, and otherwise misbehaved, that he conversed with persons during the trial in relation thereto, and said "that he was against the defendant because he was a war man," which facts did not come to the knowledge of the defendant until after the trial: Held, that by consenting to take the juror in the morning in his then intoxicated condition, the defendant did not consent that he should drink any more ardent spirits, nor can such consent be construed so as to sanction his subsequent improper conduct in the evening, after being charged with the case. Besides, he was a prejudiced, and not an impartial juror, and according to the ruling of this Court in Blalock vs. Phillips, 38th Georgia Reports, 216, the verdict should have been set aside.

Competency of wife. Misconduct of juror. Uncertainty. Before Judge Bigby. Heard Superior Court. March Term,

1869.

On the 9th of February, 1863, A. H. Jackson gave to James Jackson his promissory note for $5,216 32-100, due at one day after date. They died. Nancy Jackson adminis