harmony with the decision just cited. See Warner v. Myrick, 16 Minn. 91 (Gil. 81); Moody v. Thwing, 46 Minn. 511, 49 N. W. 229; Hendy v. March, 75 Cal. 566, 17 Pac. 702; St. Louis Bottling Co. v. Bank, 8 Colo. 70, 5 Pac. 800; Barker v. Hoff, 52 How. Prac. 382; Beach v. Kidder (Sup.) 8 N. Y. Supp. 587; 1 Enc. P. & P. 89. See, also, generally, on the subject of accounts stated, 1 Cyc. pp. 364-401. If such is the rule in reference to accounts stated generally, certainly this rule would be applicable to a stated account like the return of an administrator or executor to the ordinary, which has been approved by the court as correct, and which is declared by statute to be prima facie correct as to all persons interested therein. If a creditor or heir or legatee is bound by the account until he points out specifically the incorrect or omitted items, certainly the executor or administrator who renders the account should be likewise bound. Applying this rule in the present case, we find no specific attack made upon the returns of the executors, either by the plaintiff or the defendants. The plaintiff charges generally that the estates of the executors are liable to the estate that he represents. The representatives of the deceased executors deny this only in general terms, and make no specific attack upon the returns of the executors, or any item therein. Before the plaintiff will be allowed to attack the returns, he must allege in his petition that some of the items are incorrect, setting forth the items, as well as the grounds of attack upon them; or he must allege that there has been an item or items omitted from the returns, which should form a part thereof, setting forth specifically what such items are, so that the defendants may be put on notice of the claims made against them. Before the executors who made the returns, or their legal representatives, will be allowed to attack the returns, they must set forth the items which they claim were incorrectly made a part of the account, or must set forth specifically the items which should have been made a part thereof and were omitted, giving the reasons why such items were omitted or were incorrectly stated, as the case may be. And in a case where an executor or administrator seeks to surcharge or falsify his own account, in order to sustain the objection it must appear that there was a clear and palpable mistake made in the account, or that there has been an omission of items to which the proof clearly and satisfactorily shows he was entitled; and this must be done to the same extent and with the same certainty that courts of equity require where applications are made to correct mistakes. In the absence of clear proof of mistake, the account rendered to the ordinary must stand. See Trippe v. Wynne, supra. It follows from what has been said that when the executors of Dye charged themselves with $1,275 collected from rents, and a return em

bracing this item was approved by the ordinary, the auditor erred in striking the same from the account, there being no specific attack made upon this item, and the judge should have sustained the exception to the auditor's report which assigned error upon this finding. It also follows that there was no error in sustaining the exceptions of law filed by the defendant which raised the question that the auditor erred in admitting evidence tending to show the incorrectness of certain items in the returns which had not been attacked in the pleadings. Nor was there any error in holding that the exceptions of fact which were directed against the findings of the auditor of the different amounts which were not embraced in the pleadings could not be sustained.

4. It follows from what has been said that, where an executor has been cited to a settlement before the ordinary, and the petition does not make any attack upon his returns, and the defendant, in his answer, merely denies in general terms liability, and does not set up any claim that the return was incorrect or incomplete, the ordinary is to make up the account and settlement from the returns as they appear of record in his office. If the plaintiff desires to charge the defendant, he must set forth in his petition the grounds of liability upon which he relies with the same certainty he would be required to set them up if he had applied to a court of equity to compel the executor to come to a settlement. The defendant is also bound to set up by answer his defense with the same degree of certainty that would be required in an answer in equity. If the executor or administrator has made no returns, then the petition for the citation should allege this fact, and also show what property of the estate has gone into his hands. In such a case the defendant should set forth in detail the credits that he relies upon with the same certainty that would be required in a return to the ordinary. If the defendant has made returns, but payments have been made by him since the last return, he should set forth in his answer the items of such credits with the same certainty as would be required in a return. If his answer does not set forth such additional items, then the court has no authority to allow them in the settlement. It therefore follows that, as Mrs. Gairdner did not set up in her answer the item of $3,000 paid by her on the Howard note since the death of her husband, the auditor erred in allowing her credit for this amount, and the judge erred in directing the jury to find against the exception filed in regard to this matter. The judge also erred in directing the jury to find in favor of the exception of the defendant which set up a credit of 10 per cent. commissions on the item of $1,275 interest, which the executors had earned. This item was not pleaded, nor have we been able to find it in any of the returns of the executors.

5. While the motion for a new trial consists of the general grounds and 10 special grounds referring to rulings of the judge directing findings by the jury on the exceptions of fact, those rulings which seem to us to be erroneous are confined to three of these grounds only. The other rulings are free from error, as under the present condition of the pleadings no other course was open to the judge than that which he followed. The errors in these three grounds will result in a reversal of the judgment overruling the motion for a new trial, which, in the absence of a direction by this court confining the effect of the judgment to the items involved in the three grounds which contain the erroneous rulings will have the effect to set aside the entire verdict. We might, in the exercise of the discretion with which the law invests this court, direct that the verdict and judgment be amended by striking two of the items of credit which the auditor erred in allowing and inserting the item of debit which the auditor erred in striking; but no request was made for such a direction, and we are not altogether clear that this course would be in the interest of justice.

We will therefore

reverse the judgment generally, and leave the case to be disposed of in accordance with the law applicable thereto when it comes before the judge again for final judgment. Judgment reversed. All the Justices con

cur.

SWEENEY v. SWEENEY.

(Supreme Court of Georgia. Nov. 28, 1903.) EJECTMENT-EVIDENCE-JUDGMENT -ENTRY -SHERIFF'S DEED-DECLARATIONS OF AGENT -OBJECTIONS TO EVIDENCE-RIGHT OF ACTION-COSTS OF FORMER SUIT.

1. Where, on the trial of an action for the recovery of land, brought by one who claimed to have purchased the same at a sheriff's sale against the defendant in the execution under which it was sold, the plaintiff introduced in evidence the sheriff's deed, accompanied by an exemplification of a valid judgment against the defendant, and proof of the loss of the execution issuing therefrom, a prima facie case of title in the plaintiff was made out, and it was erroneous for the court to charge the jury that the sheriff's deed could be considered only as color of title.

(a) A judgment rendered by the court in 1869 in a suit on an unconditional contract in writing, where no issuable defense was filed under oath, in all respects regular, except that it was not signed by the judge, is valid if entered on the minutes of the court, and they are signed by the judge; and, in the absence of any proof to the contrary, it will be presumed that the judge signed the minutes.

(b) Sufficient evidence was introduced in this case to raise a reasonable presumption that the execution was lost, and to show due diligence in searching for it.

(c) The recitals in a sheriff's deed, of the execution, and the seizure and sale of the property by virtue thereof, are, when the execution is lost, prima facie evidence of the truth of such recitals.

2. The declarations of an agent, who is in possession of realty merely to manage and care

1 (c). See Execution, vol. 21, Cent. Dig. § 941.

for the same, are not admissible in evidence against the principal to disparage his title.

3. Where evidence is objected to as a whole, and some parts of it are admissible, it is not erroneous to overrule the objection.

4. A judgment abating an action upon the ground that the plaintiff had brought the same without having paid the costs which had accrued in a previous suit, involving the same subject-matter and against the same defendant, which had been begun and dismissed by him, is no bar to the bringing of a third suit for the same cause of action, and against the same defendant, if, before instituting the last proceeding, the plaintiff has paid all the costs which had accrued in the two previous suits.

(Syllabus by the Court.)

Error from Superior Court, Bibb County; W. H. Felton, Jr., Judge.

Action by Miles Sweeney against Mary Maloy, and equitable petition against the same defendant for an injunction. The suits were consolidated, and, on the death of defendant, Kate I. Sweeney, administratrix, was made defendant. Verdict for defendant, and plaintiff brings error, and defendant assigns crosserror. Reversed on main bill of exceptions, and affirmed on cross-bill.

M. W. Harris and J. R. Cooper, for plaintiff in error. W. J. Grace and J. L. Anderson, for defendant in error.

FISH, P. J. Miles Sweeney brought ejectment, to the April term, 1901, of Bibb superior court, against Mary Maloy, for certain realty in the city of Macon. As ancillary to this action, he brought to the same term, and against the same defendant, an equitable petition for injunction and receiver, in which he set forth the title upon which he relied for a recovery. Pending the suits the defendant died, and Kate I. Sweeney, administratrix on her estate, was made party defendant. On the trial the two actions were consolidated and tried as one. The plaintiff introduced the following documentary evidence: (1) An exemplification of the minutes of Bibb superior court, showing the following judgment: "Patrick Fleming vs. John & Mary Maloy. Complaint. No issuable plea under oath having been filed in this case: It is ordered that plaintiff have judgment against defendants, John Mulloy and Mary Mulloy, for the sum of three hundred dollars principal, with interest from August 22nd, 1867, and costs of suit. By the Court, June 14th, 1869. Whittle & Gustin, Plaintiff's Attys." (2) An exemplification of the execution docket of such court, showing an entry thereon of the execution issued upon such judgment and its delivery to Martin, sheriff, on August 7, 1869. (3) A sheriff's deed, dated May 7, 1873, and duly recorded, executed by George F. Cherry, sheriff of Bibb county, to Miles Sweeney, to the premises in dispute; consideration, $250. This deed recited that James Martin, late sheriff of Bibb county, on August 9, 1869, levied the execution above referred to upon the land in dispute, and that George F. Cherry, sheriff, sold

it in pursuance of such levy. The deed also contained the recitals usual in sheriff's deeds. (4) A warranty deed from Miles J. Sweeney to Patrick Sweeney, dated and recorded May 9, 1885, to the premises in dispute; consideration, $256. (5) A warranty deed from Patrick Sweeney to Miles J. Sweeney, to the premises in dispute, dated June 26, 1888, and duly recorded; consideration, $500. The plaintiff testified that he had the execution referred to in his possession some six or seven years prior to the trial; that he did not know what had become of it; that he had made frequent and thorough searches for it, but had failed to find it. Sheriff Wescott and Deputy Sheriff Menard testified that they had made several searches in the sheriff's office for the execution, but it could not be found. Deputy Clerk Holt testified that it could not be found in the clerk's office after careful search. The plaintiff's contentions were, in brief, that he purchased the property in good faith at sheriff's sale, and paid $250 for it; that he went into actual possession under the sheriff's deed, and so remained, holding the property adversely, until 1885, when he conveyed the property to his brother Patrick Sweeney, with the verbal understanding between them that Patrick should hold the title until the plaintiff shoud return from Ireland, where he then contemplated going for a few years; that, upon his return from Ireland, Patrick reconveyed the property to him, in 1888; that he remained in possession of it till 1893 or 1894, when, Mary Maloy having gone into possession of part of it, he sued out a warrant to dispossess her. The defendant's contentions, in substance, were that Mary Maloy had been in the actual adverse possession of the property for more than 30 years; that plaintiff had never been in possession; that Mary Maloy furnished plaintiff with sufficient money to pay for her the claim of Patrick Fleming, and she believed he had done so; that he fraudulently had the property sold by the sheriff, and took the sheriff's deed to the same, and she had no knowledge until recently that any such sale had ever been made, or that plaintiff claimed to own any interest in the property. Evidence was submitted by both parties tending to sustain their respective contentions. There was a verdict in favor of the defendant. The plaintiff moved for a new trial, which being refused, he excepted.

1. The court charged the jury that, inasmuch as the execution in favor of Fleming against John and Mary Maloy had not been put in evidence, the deed from Cherry, sheriff, to Miles Sweeney could be considered by them only as color of title, and that, to make out a prima facie case, plaintiff would have to show seven years' adverse possession under such deed. In the motion for a new trial, error was assigned upon this charge, and we think the exception well taken. A

sale regularly made by virtue of a judicial process issuing from a court of competent jurisdiction conveys the title as effectually as if the sale were made by the person against whom the process issued. Civ. Code 1895, § 5446. And in all controversies in the courts of this state the purchaser at such a sale shall not be required to show title deeds back of his purchase. unless it be necessary for his case to show good title in the person whose interest he purchased. Id. § 5447. As we have seen, the suit was brought against the defendant in execution by the purchaser at sheriff's sale; and the sheriff's deed exhibited in evidence by the plaintiff was accompanied by exemplifications showing a judgment against the defendant, the entry on the execution docket of the execution issued on the judgment, and delivery of the execution to the former sheriff, and by proof of loss of the execution. While the judgment was rendered in a suit upon an unconditional contract in writing, where no issuable defense was filed on oath, yet it appears to have been rendered "by the court," and was entered on the minutes; and the presumption is, nothing to the contrary appearing, that the court did its duty by signing the minutes. The judgment was therefore valid. American Mortgage Co. v. Hill, 92 Ga. 305, 18 S. E. 425, and cases cited. Proof that the fi. fa. was entered on the execution docket, and that the docket showed a delivery of the execution to the former sheriff, was sufficient to show that the fi. fa. had existed; and the unavailing searches made for it by the sheriff, the deputy sheriff, and the clerk, as well as by the plaintiff, were sufficient to authorize the presumption that it was lost or destroyed-proof sufficient to raise a reasonable presumption of its loss or destruction being all that was necessary. Vaughn v. Biggers, 6 Ga. 188 (2); Harper v. Scott, 12 Ga. 125 (4). In Fretwell v. Morrow, 7 Ga. 264, where it appears that a constable levied a justice's court fi. fa. on land, and delivered the execution to the sheriff, who duly sold the land, but failed to execute a deed to the purchaser, and that his successor in office subsequently executed such deed, it was held that upon proof of loss of the fi. fa. the deed was admissible in evidence. It is true that it was not expressly said that the deed was admissible as title, but such was evidently the extent of the ruling, as the deed would have been admissible as color, unaccompanied by the fi. fa., though the latter had not been lost. It has been several times held that "the sheriff's deed alone, unaccompanied by either the judgment or the fi. fa., was sufficient to constitute color of title." Beverly v. Burke, 9 Ga. 440, 54 Am. Dec. 351; Hester v. Coats, 22 Ga. 58; Hammond v. Crosby, 68 Ga. 767. In Watson v. Tindal, 24 Ga. 494, 71 Am. Dec. 142, it was held: "A sheriff's deed must be accompanied by the execution under which the land was sold, or

In

the judgment upon which it issued." Boatright v. Heirs of Porter, 32 Ga. 130, the following ruling was made: "A sheriff's deed being offered in evidence without the production of the execution under which the sale was made, or of any exemplification of the judgment, but it appearing that great diligence had been shown to procure both, held, that the deed was properly admitted in evidence, under the circumstances, upon the faith of its own recitals." Of course, in view of the previous rulings in Beverly v. Burke and Hester v. Coats, supra, this decision meant that the sheriff's deed was admissible as title, and not merely as color. It was held in Irby v. Gardner, 56 Ga. 643, that "a sheriff's deed, duly recorded, should be admitted in evidence without the justice court fi. fa. under which the land was sold; the sale having been made in 1855, and the fi. fa. lost." And it was early held by this court-Ellis v. Smith, 10 Ga. 253 (2), citing Vaughn v. Biggers, 6 Ga. 188-that the recitals in a sheriff's deed of the fi. fa., and seizure and sale of the property under it, are, when the fi. fa. is lost, prima facie proof, at least, of the facts contained in the deed. While it may not have been expressly held that a sheriff's deed, when accompanied by the judgment only, is admissible as title, and not merely as color, there is certainly a strong intimation in several of the cases which we have cited above that such is the true rule. Be this as it may, however, there can be no doubt that where, as in this case, the sheriff's deed is accompanied by an exemplification of a valid judgment, and proof of the loss of the execution, the deed is admissible as evidence of title, and not merely as color of title.

2. Complaint was made in the motion for a new trial of the admission in evidence, over plaintiff's objection, of a letter written January 29, 1891, by E. J. Burke for Patrick Sweeney, to Mary Maloy, the contents of which, the defendant claimed, amounted to an admission by Patrick Sweeney that the land in dispute was the property of Mary Maloy at the time the letter was written. The court erred in admitting this letter in evidence. According to the testimony of Miles Sweeney, his brother Patrick reconveyed this property to him in 1888, after he returned from Ireland. Miles subsequently went to Ireland again, and, as he testified, left Patrick in possession of the property as his agent, to manage and care for it while he was away, and he had not returned when the letter above referred to was written. The declarations of an agent in the possession of property simply for the purpose of managing it and caring for it for his principal are not admissible to show title to the property out of his principal. An essential condition upon which the admissions of an agent are admissible against his principal is that they be made in pursuance of the

* * *

agent's power-within the scope of his authority (Civ. Code 1895, § 5192)-for, if they have reference to acts which the agent had no power to perform, or to any matter foreign to the agency, they stand on the same level as the statements of strangers, and are clearly inadmissible. 1 Gr. Ev. § 113. "A letter is inadmissible to bind a third person in the absence of proof of authority from him to the writer to make the statements and admissions therein contained." McMath v. Teel, 64 Ga. 595. "The admissions of an agent only bind his principal when made in the scope of his business as agent, and, if either party relies upon such admissions, he must show they were made in the scope of his business." Wilcox v. Hall, 53 Ga. 635. The only power or authority, under the evidence, that Patrick Sweeney had in reference to the property in dispute, at the time the letter in question was written, was to manage and take care of it-rent it, collect the rents, keep it insured and in repair. So he manifestly had no power to impair or dis credit his principal's title to the property, if he had any, by making statements in disparagement thereof. An agent cannot dispute his principal's title. Civ. Code 1895, § 3012. In Claflin v. Continental Works, 85 Ga. 27, 11 S. E. 721 (3), it was held that "while [an agent] was intrusted with the possession and management of the business [of the principal] he could use the goods so as to realize some profit to his principal, but could not pay even matured claims in goods discounted twenty-four per cent. from the cost price marked upon them by the prin cipal." In the opinion (page 40, 85 Ga., page 722, 11 S. E.) it was said: "There can be no doubt that the agent violated his duty in admitting, upon an ex parte representation, that his principal had committed such wholesale fraud, especially when he knew so little of the latter's concerns as to be totally surprised on hearing of the outstanding indebtedness, and when he professed to have the intention of continuing the business. An agent cannot deny his principal's title." So it has been held that "the declarations of an agent of a vendee, whose agency is limited to the care and custody of goods after they have passed to the possession of the vendee, are not admissible in evidence to show that the purchase of the vendee was fraudulent." Hutchings v. Castle, 48 Cal. 152. On the same line is Winchester Mfg. Co. v. Creary, 116 U. S. 161, 6 Sup. Ct. 369, 29 L. Ed. 591. Counsel for the defendant in error contend that the letter was admissible as a declaration of a person in possession of property in disparagement of his own title. Under the evidence, Patrick Sweeney had possession of the property merely as the agent of Miles Sweeney, and his agency was limited to managing and caring for it. The letter contained nothing in disparagement of the title of Patrick, because he had no title when

the letter was written, nor did he claim any. While the declarations of one in possession against his interest are admissible against him and those claiming under him, the rule, as we have shown, does not apply to this case, because Patrick had no interest in the prop⚫erty except as agent for Miles, and the latter did not claim under the former.

3. Error was assigned upon the admission, over plaintiff's objection, of several letters from Miles Sweeney to Patrick Sweeney. These letters, as appears from the motion for new trial, were objected to as a whole. Some of them, or at least portions of some of them, were clearly admissible, and therefore it was not erroneous to overrule such objection.

a

4. It appears from a cross-bill of exceptions sued out by the defendant in error that she filed a plea of res adjudicata to the present action, in which it was set forth that Miles Sweeney brought an action against Mary Maloy, returnable to the November term, 1894, of Bibb superior court, to recover the property which is the subject-matter of the present suit, in which former action, as the petition therein showed, he relied for a recovery upon the same muniments of title as in the present case; that on January 25, 1897, the former action was dismissed on motion of counsel for plaintiff therein; that in February, 1897, Miles Sweeney brought another action for the same property against Mary Maloy, returnable to the April term, 1897, of Bibb superior court, in which he again relied for a recovery upon the same muniments of title as in the present suit, the petition reciting that plaintiff had voluntarily dismissed his first petition; that to the second suit Mary Maloy filed a plea of abatement, setting up the voluntary dismissal by plaintiff of his first action, and that he had subsequently brought the second suit, involving the same subject-matter, and between the same parties, without having paid the costs and expenses that had accrued in the first suit; that upon this plea of abatement there was a verdict sustaining the same, and a judgment entered thereon abating the second suit; and that such judgment was reviewed by the Supreme Court and was affirmed. By consent of parties the issue raised by the plea of res adjudicata was submitted to the court for decision without the intervention of a jury. Upon proof of the facts set up in this plea, the court found against it. Error was assigned upon this judgment of the court in the cross-bill of exceptions. We see no error in the court's ruling. The judgment abating the second suit did not bar the plaintiff from subsequently bringing the present action, after paying all the costs in the first and second suits, as the court found he had done.

Judgment reversed on main bill of excep⚫tions, and affirmed on cross-bill. All the Justices concur.

SMITH v. STATE.

(Supreme Court of Georgia. Dec. 8, 1903.) CRIMINAL LAW APPEAL REVIEW EXCLUSION OF EVIDENCE- INSTRUCTIONS - ARGUMENT OF COUNSEL-NEW TRIAL.

1. It not appearing in the motion for a new trial what the answer of the court stenographer to the question asked him was or would have been, this court cannot consider the complaint that the rejection of his evidence was error.

2. It was not error that the court excluded from the evidence the official stenographer's notes of a dialogue between counsel and a witness on a former trial of the same case, it not appearing prima facie that such evidence elucidated any point in the case on trial, and the complaint in the motion for a new trial not showing in what way it injuriously affected the rights of the accused.

3. The assignment of error upon the charge of the court falls within the ruling of this court in Anderson v. Southern Ry. Co., 107 Ga. 501, 33 S. E. 644 (4c), that "when a portion of a charge, which is complained of generally, contains several distinct propositions, and one or more of the same is correct in the abstract, then the general assignment of error is not good and will not be further considered."

4. It did not appear that the evidence objected to, even if inadmissible, was of such materiality that its subsequent withdrawal by the court from the consideration of the jury did not cure whatever harm had been done the accused. 5. The record does not disclose that the alleged improper argument of counsel was made the basis of a motion for a mistrial, or that any objection whatever was made thereto before the trial judge, and therefore it was not error to refuse to grant a new trial on the ground of such argument.

6. The evidence fully sustained the conviction of the accused, and this court will not interfere with the judgment of the court below refusing to grant a new trial.

(Syllabus by the Court.)

Error from City Court of Dublin; J. S. Adams, Judge.

Plummer Smith was convicted of crime, and brings error. Affirmed.

Geo. W. Williams, for plaintiff in error. G. H. Williams, Sol., for the State.

CANDLER, J. Judgment affirmed. All the Justices concur.

CAMP et al. v. VAUGHAN. (Supreme Court of Georgia. Dec. 8, 1903.)

WILLS

RESIDUARY ESTATE DESCENT AND DISTRIBUTION-CLAIMS AGAINST UNITED STATES.

1. The officers of the army of the United States, during the late war between the United States and the Confederate States, received and appropriated to the use of the army certain supplies, quartermaster and commissary stores, belonging to Jonathan D. Vaughan, of Paulding county. After the war, Vaughan filed with the United States commissioners of claims, under the act of Congress approved March 3, 1871 (16 Stat. 524, c. 116, § 2), a claim for compensation for these supplies; setting them out in an itemized statement, and averring his loyalty to the United States during the war. Subsequently his petition, under another act of Congress, known as the "Bowman Act," was referred to