Shipp et al. vs. Wingfield.

thereof,) the latter part of the year 1836, and has occupied it ever since.

Mitchell testified that in March, 1845, he saw such acts of ownership on the lot as the sign of timbers for cotton boxes having been got, and that there was a fence of Wiley's inclosing from five to ten acres of the lot in dispute, that this fence inclosed a pond while the fence of Wiley, if it had continued straight on the line dividing lots two hundred and twenty-nine and two hundred and thirty, would have passed through the pond. Witness asked Wiley's overseer why he made the fence around the pond, who answered that it was to avoid going through the water, that he did not wish to go through deep water, that it was Wiley's land anyhow. That portion of the witness' answer as to what Wiley's overseer said was objected to and the objection overruled, which is assigned as error. The materiality of this evidence is not very apparent in regard to the main question of possession. Wiley's fence was upon the land, and the statement of his overseer only gives the reason why it was there; that reason did not alter or change the location of the fence on the lot in dispute. But we think this statement of the overseer of Wiley, who was in possession of the land at the time, managing his property for him as his agent, was competent to prove the adverse possession of Wiley: Code, sections 3721, 2189. Shipp, as the husband of his wife, by virtue of his marital rights under the law as it existed at the time of the commencement of this suit, had the legal right to sue for the land and to reduce the same to possession as his property, and according to the ruling of this Court in Prescott & Pace vs. Jones & Peavy, 29 Georgia Reports, 58, he was the only person who could legally do so, as the title was in him, and not in his wife. The mistake of the plaintiff in error is in the assumption that, under the law as it then existed, that the wife had a separate estate in the land, independent of the marital rights of her husband, against which the statute of limitations did not run during her coverture. In view of the facts of this case, as disclosed by the record, and the

Walton et al. vs. Gill.

charge of the Court to the jury as to the law applicable thereto, we find no error in the refusal of the Court to grant a new trial: See Wiley vs. Warmock et al., 30 Georgia Reports, 701.

Let the judgment of the Court below be affirmed.

JOHN H. WALTON, plaintiff in error, vs. JACKSON M. GILL, administrator, defendant in error.

JAMES LEONARD et al., plaintiffs in error, vs. JACKSON M. GILL, administrator, defendant in error.

WILLIAM J. WEEKES, executor, plaintiff in error, vs. JACKSON M. GILL, administrator, defendant in error.

Where an executor is sued as such, in the county of his residence, and, pending the suit, dies, and administration, de bonis non, is granted upon the estate of his testator, who lived and died in a different county, to a citizen of the county of the testator's residence, the suit against the executor does not abate, and a scire facias issued to made the administrator de bonis non, a party to the suit, should not have been dismissed under the facts stated.

Jurisdiction. Venue. Administrator de bonis non, cum testamento annexo. Before Judge JOHNSON. Talbot Superior Court. March Term, 1872.

The three above cases, involving the same point, were heard and decided together. The plaintiffs in error brought suits against A. G. Perryman, as executor of James Perryman, deceased, to the Superior Court of Talbot county. When the cases were called, the following facts were made to appear to the Court: That said A. G. Perryman departed this life in 1869; that his death had been duly suggested of record and scire facias served on Jackson M. Gill, as administrator de bonis non, cum testamento annexo, upon the estate of said James Perryman, requiring him to show cause why he should

Walton et al. vs. Gill.

not be made a party to said suits; that James Perryman, at the time of his death, was a citizen of Marion county; that his will was proved by A. G. Perryman and letters testamentary issued in said county; that the said A. G. Perryman was, and had always been, a citizen of the county of Talbot; that the said Gill, since the death of the said A. G. Perryman, had been appointed administrator de, etc., upon the estate of said James Perryman; that said Gill was, and had always been a citizen of the county of Marion; that scire facias had been served upon said Gill by the sheriff of Marion county. Upon this showing, plaintiffs in error moved to have the said Gill, as administrator, as aforesaid, made a party defendant to each of said causes.

Upon objection made, the motion was overruled and plaintiffs in error excepted and assign said ruling as error.

E. H. WORRILL; M. BETHUNE; G. N. FORBES, for plaintiffs in error.

BLANDFORD & CRAWFORD, for defendant.

MONTGOMERY, Judge.

It is very clear that the action against an executor or administrator, as such, does not abate on his death, as a general rule, but his successor is made a party by scire facias: Code, sections 3375, 3380. It is equally clear that the policy of our law is, as a general rule, against abatement of actions for any

cause.

By our statute law, then, the suit in this case does not abate. And the question is narrowed to the inquiry, does it abate by virtue of the 7th paragraph, section 12, Article V., of the Constitution. That section, after enumerating what suits may be brought out of the county of a defendant's residence, says, "all other cases shall be tried in the county where the defendant resides;" grammatically, resides at the time the case is tried. Suppose he removes out of the county pendente lite, does the suit follow him to his new home, to be VOL. XLVI. 39.

The Western and Atlantic Railroad vs. Harris.

there "tried?" If the letter of the Constitution is to be adhered to, yes. What difference, in principle, is there between the case supposed and the case at bar? None is perceived.

Judgment reversed.

THE WESTERN AND ATLANTIC RAILROAD, plaintiff in error, vs. PETER C. HARRIS, defendant in error.

Where a set of interrogatories was tendered in evidence, and it ap peared, from inspection, that the commissioners had taken the answers of the witness as required, that he had sworn to and subscribed to them, that the commissioners had duly attached their names to a proper certificate; that after this the commissioners had permitted the witness to add to his answers, adding a new jurat and a new certifi cate, but it did not affirmatively appear that the addition was at the same tire and place, and a part of the same transaction: Held, That the addition was not properly a portion of the return.

Interrogatories. Before Judge HOPKINS. Fulton Superior Court. October Term, 1871.

Peter C. Harris brought case against the Western and Atlantic Railroad for $5,000 damages, alleged to have been sustained by plaintiff by reason of the negligence and carelessness of the defendant in the transportation, as a common carrier, of a blooded stallion by the name of "Brattleboro," from the city of Atlanta to the town of Kingston, along the line of said railroad, by which said stallion was permanently injured.

Upon the trial the depositions of Julius A. Peck, L. Q. Stone, Augustus R. Jones, and Peter C. Harris, taken under one commission, were introduced in evidence for the plaintiff. The commission was executed on the 7th day of April, 1871, in the usual form. Under the jurat, attached to the answers, was the following language, to-wit:

"For further answer to sixth interrogatory, P. C. Harris

The Western and Atlantic Railroad vs. Harris.

answers: This horse 'Brattleboro' belongs to that family of world renowned trotting horses, known as the Morgan breed, one of which ('Dexter') was sold to Bonner for $30,000. 'Brattleboro' is, or was remarkable for his speed, action and size; and, as a stallion, ought to command as much as 'Dexter' or any other horse. I am confident that if this horse 'Brattleboro' had not been injured, he could have commanded forty or fifty mares, at $40 each, per season, and the said horse, when injured, was worth not less than $3,000. I would prefer raising from him to any horse living.

(Signed)

"PETER C. HARRIS.

"Answered, sworn to and subscribed

before us, 7th April, 1871.

(Signed) "W. F. TURNER, Com'r.

[L. S.]

"JOY F. THOMPSON, Com'r. [L. s.]"

After the answers were read the defendant moved to exclude all of the aforesaid addition from the consideration of the jury. The motion was overruled. The jury returned a verdict for the plaintiff for the sum of $3,000 principal, and $402 50 interest.

The defendant moved for a new trial upon the following ground, to-wit:

Because the Court erred in not execluding, on defendant's motion, all that part of the answers of Peter C. Harris, which had been answered after the formal execution of the commission, the signature of all the witnesses and of the commissioners, the commissioners having no power to continue or extend the examination after such formal closing.

The motion was overruled and defendant excepted, and assigns said ruling as error.

L. E. BLECKLEY; HULSEY & TIGNER, for plaintiff in

error.

R. ARNOLD; E. N. BROYLES, for defendant. 1. The exception was not taken in writing and notice given: Code, sec.