Bryaut vs. Hambrick. read to the Jury as a set-off. To all of which, counsel for plaintiff excepted. The Court charged the Jury, "that the measure of damages in this case was the purchase money, with interest from the time the notes given for the land became due, and that they could not take into consideration the value of the land nor the improvements." To which charge, the counsel for plaintiff excepted. And upon these several exceptions has assigned error. W. DOUGHERTY, for plaintiff in error. BULL and FERRELL, for the defendant. By the Court.-LUMPKIN, J. delivering the opinion. [1.] We think the Circuit Judge was right in allowing the defendant's plea to be amended, but that he erred in permitting the execution to be read to the Jury as a set-off. [2.] Instead of the fi. fa. the judgment, upon which it issued, should have been tendered in evidence. [3.] Nor do we concur in the opinion, that the purchase money, with the interest thereon, is the measure of damages in an action on a bond for titles to land. Such a rule would tempt the vendor, in any case where the property increased in value, to violate his contract. The proper criterion is, the value of the land at the time when the title should have been made. Davis and Smith (5 Kelly & Cobb, 274,) was for the breach of a covenant of warranty of title, and, therefore, distinguishable from the present case. [4.] If the vendee and obligee is not content with this measure of compensation, he may go into Equity and compel a specific performance of the contract. Or if that is rendered impossible, as in the present instance, for want of title in the vendor, he may, by making a proper case, move in a Court of Chancery, and have a suitable allowance made him for his improvements. See Martin vs. Atkinson, 7 Cobb, 228. Judgment reversed. McGehee vs. Ragan. No. 29.-ROBERT F. McGEHEE, plaintiff in error, vs. JAMES B. RAGAN, &c. defendant. [1.] Letters of administration must be granted by the Court of Ordinary, at the next term of the Court immediately succeeding the publication of the thirty days' notice of the applicant and citation by the Clerk, unless the application is regularly continued by the action of the Court, from time to time, and then the parties in interest are bound to take notice of such con tinuance. Motion, in Troup Superior Court. Decided by Judge HILL, May Term, 1850. Abraham B. Ragan applied to the Clerk of the Court of Ordinary of Troup County, for letters of administration on the estate of John Omara, deceased. Citation and notice were duly issued and published. At the term for his qualification, the said Abraham B. Ragan was unable to give the security required by law, and did not make application to the Court. The application to the Clerk remained in this position for several terms of the Court. At the March Term of the Court, 1849, by an agreement with Abraham B. Ragan, Robert F. McGehee, the plaintiff in error, came forward, gave the required bond and security, and was qualified as the administrator of the said John Omara. Twelve months after this appointment, the defendant in error, in right of his wife, Sarah Ragan, formerly Sarah Omara, moved the Court of Ordinary to revoke the letters of the said Robert F. McGehee, on the ground that he was not the next of kin to the deceased, and that no notice or citation of his application had been published. The Court of Ordinary granted the motion, and revoked the letters. An appeal was taken to the Superior Court, by the plaintiff in error, and the judgment of the Court of Ordinary was affirmed. To which decision counsel for McGehee excepted. W. DOUGHERTY, for plaintiff in error. McGehee vs. Ragan. BULL and FERRELL, for defendant. By the Court.-WARNER, J. delivering the opinion. [1.] The only question in this case is, whether letters of administration can be granted by the Court of Ordinary, to an applicant therefor, at any other term of the Court than the one to which notice has been given that the application will be made. From the record in this case, it appears that one Abraham B. Ragan, in July, 1848, applied to the Clerk of the Court of Ordinary, of Troup County, for letters of administration on the estate of John Omara, deceased. The Clerk issued the usual citation, and at the next term of the Court thereafter, Ragan being unable to give security, did not make application to the Court for letters of administration. The application, as made to the Clerk, remained and continued from term to term until the first Monday in March, 1849, when McGehee, by an agreement with Ragan, the former applicant, was appointed administrator, without any new citation or notice. The Act of 1799 declares, that "All applications for letters of administration shall be made to the Clerk of the Court of Ordinary, who shall give notice thereof in one of the public gazettes of this State, and by advertisement at the court house door of the County, at least thirty days before the sitting of said Court of Ordinary." Prince, 231. According to the strict letter of the Act, it would seem that letters of administration could only be granted at the sitting of the Court immediately succeeding the publication of the thirty days' notice; but we believe that it has been the practice, under that Statute, when the cause has been continued by the Court, to grant letters at a subsequent term of the Court. We do not see any great objection to this practice, inasmuch as all the parties in interest are presumed to be present at the Court to which they were cited by the notice of the applicant, and when the application is regularly continued by the Court, for cause shown, at its discretion, the parties in interest are bound to take notice of such continuance. But where the applicant, as in this case, fails 1 Peacock vs. Terry. to make his application to the Court for letters, to which he has cited the parties in interest to appear, and the same remains without being regularly continued by the Court, from term to term, by the action of the Court, the parties in interest have a right to consider the application as abandoned, and the Court below did not err in deciding that the letters of McGehee, appointed without any notice of his intended application therefor, as required by the Statute, should be revoked. Let the judgment of the Court below be affirmed. No. 30.-LEWIS PEACOCK, plaintiff in error, vs. STEPHEN TERRY, defendant. [1] Where a bill charges a fraudulent sale and purchase under execution by defendant of complainant's property, proof of the admissions of complainant, that the sale was made in pursuance of an agreement between himself and defendant, is admissible. [2] Where the pleadings are made up and the cause on trial, and the evidence closed and the argument progressing, it is not competent to amend the bill but for special cause; and not where there is special cause shown, if the effect of the amendmet is to introduce a new cause of action. [3.] No one can maintain an action for a wrong done, where he has consented or contributed to the act which occasions the loss. Hence, if a complainant seeks to recover for an act of defendant, which he charges to be fraudulent, it is not a fraud against him if it was done in pursuance of an agreement between himself and the defendant. [4.] A complainant who participates with the defendant in an act by the defendant, which is in violation of the laws of the land, is not entitled to relief in a Court of Equity against the consequences of such act. [5.] A party who goes into Equity to seek relief against a usurious contract, who has paid principal and legal interest of the debt, must aver in his bill that he has paid the principal and legal interest, and that if anything remains of these unpaid, that he is ready and willing, and now offers to pay whatever balance of principal and legal interest remains unpaid. [6.] Facts alleged positively in a bill, are constructive admissions in favor of VOL IX 18 Peacock vs. Terry. the defendant, and need not be proven. The complainant cannot deny them, even if they are not true, but must recover according to the case he makes upon the record. In Equity, in DeKalb Superior Court. Tried before Judge HILL. This was a bill in Equity, filed by the defendant in error against the plaintiff in error, returnable to DeKalb Superior Court, alleging that in the year 1831, complainant was in need of money, and applied to the defendant, who loaned him, at different times, sums amounting in the aggregate to $502 46 cents, all at usurious interest; that complainant paid defendant, at different times, the aggregate sum of $459 63 cents; that he renewed his note yearly up to 1837, when he gave defendant his note for $807 65 cents, and to secure the same, gave the defendant a mortgage on lot of land No. 71, in the 14th district of originally Henry now DeKalb County. The bill alleges, that in the year 1841, the said lot of land, together with another, known as lot No. 90, adjoining thereto, were levied upon by virtue of two executions against the complainant, when he entered into an agreement with the defendant, by which the defendant was to pay the plaintiffs in execution the amounts due them, and take them up and hold them against the complainant; that the defendant was to have the possession of both lots of land-on one of which there was a grist and sawmill-with the exception of the dwelling-house, and fifty acres of land around it; that the use of the plantation and mills was to be a full compensation to the defendant for his interest on his mortgage debt and the executions; and that complainant was to have three years in which to redeem them, and upon failure of his redeeming them, the defendant was to take lands and mills at the price of $1600. The bill further charges, that a short time after the contract, the defendant stated, that as the lands had been levied upon, that he preferred their being sold, to prevent other creditors from interfering with him, to which complainant consented. The lands accordingly were sold, and the defendant became the |