p. 46.

By whom, and for what cause allowed.

§3715. (3664.) For erroneous charge to jury, etc. A new trial may Act of 1853-54, be granted in all cases when the presiding Judge may deliver an erroneous charge to the jury against such applicant on a material point, or refuse to give a pertinent legal charge in the language requested, when the charge so requested is submitted in writing.

p. 47.

Manner of charging: 1 Kelly, 475; 8 Ga., 258; 10 Ga., 101: 12 Ga., 295; 19 Ga., 404: 40 Ga., 107; 44 Ga., 46. Calculated to mislead: 1 Kelly, 475; 10 Ga., 253; 12 Ga., 100, 323; 15 Ga., 258; 19 Ga., 335; 30 Ga., 241: 33 Ga., 207; 41 Ga., 263. Charge not warranted by facts: 3 Kelly, 256; 6 Ga., 451; Ga., 496; 8 Ga., 114, 178; 9 Ga., 310: 10 Ga., 218, 362; 11 Ga., 286; 12 Ga., 100, 293; 13 Ga., 46, 315, 407; 14 Ga., 135, 137, 216; 15 Ga., 205; 17 Ga., 420, 575; 18 Ga., 411; 19 Ga., 112, 203: 20 Ga., 203: 21 Ga., 271; 22 Ga., 47, 98, 237, 385, 399; 24 Ga., 445, 454; 26 Ga., 472, 611; 28 Ga., 200; 29 Ga., 207, 405, 743: 30 Ga., 22, 137, 271, 714, 891, 944: 32 Ga., 376, 396, 453, 458; Berry vs. Cooper, March term. 1864: 34 Ga., 330 35 Ga., 241; 36 Ga., 56, 371, 635; 37 Ga., 497; 41 Ga., 484, 538; 42 Ga., 290; 44 Ga.. 28; 45 Ga., 108. Calculated to decrease juries' sense of responsibility: 5 Ga., 86; 8 Ga., 258; 21 Ga., 341; 24 Ga., 161. References to the Supreme Court: 5 Ga.. 86; 8 Ga., 258; 11 Ga., 461; to its decisions: 12 Ga., 271; 24 Ga., 161: 40 Ga., 107; 44 Ga., 383. Preface to charge: 7 Ga., 139. Charge collectively right: 7 Ga., 190; 11 Ga., 338; 41 Ga., 187. Construed how: 7 Ga., 190; 9 Ga., 22: 11 Ga., 338: 14 Ga., 277: 21 Ga., 221; 22 Ga., 418; 41 Ga., 187; 44 Ga., 46, 209, 383. "Pertinent:" 9 Ga., 191; 30 Ga., 55: 42 Ga., 290. Summing up: 9 Ga., 359; 16 Ga., 38: 18 Ga.. 697. Charge upon evidence illegally admitted: 10 Ga., 187; 30 Ga., 619; 32 Ga., 372. Not sufficiently full: 10 Ga., 253: 18 Ga., 693. Excluding from jury's mind portion of evidence or one of the hypotheses of the case: 11 Ga., 286; 15 Ga., 277; 17 Ga., 498; 24 Ga., 506; 26 Ga., 494: 30 Ga., 361: 32 Ga., 515; 33 Ga., 288; 38 Ga., 252; 44 Ga.. 129, 174; Sharp vs. State, January term, 1873; or one of pleas in case: 19 Ga., 285; 25 Ga., 310. Need not charge in immediate response to request: 12 Ga., 294. "In the language requested:" 12 Ga., 294; 14 Ga., 286; 15 Ga., 223; 26 Ga., 625; 36 Ga., 635; 37 Ga., 289; 38 Ga., 304; O'Neal vs. State, January term, 1873. Failure to request: 13 Ga., 34; 37 Ga., 102; 38 Ga., 631. Where the Court omits to charge: 13 Ga., 34; 15 Ga., 189; 17 Ga.. 444; 19 Ga., 1; 20 Ga., 523; 23 Ga., 292: 26 Ga., 374: 28 Ga.. 200; 30 Ga., 102; 35 Ga., 241; 37 Ga., 102: 41 Ga., 484. Specific instructions after general charge covering: 13 Ga., 54; 17 Ga., 204: 44 Ga., 139, 209. Bill of exceptions to: 14 Ga.. 402; 19 Ga., 1; 24 Ga., 590; 26 Ga., 374; 28 Ga., 186; 43 Ga., 569. Presumption in favor of: 14 Ga., 277; 22 Ga.. 168; 44 Ga., 638. Where no injury results from refusal: 15 Ga., 205: 28 Ga., 200; 30 Ga.. 426; 32 Ga.. 390, 640; 41 Ga.. 675. On Act of 1853-4: 17 Ga., 204. Refusal to listen to request, to farther charge: 17 Ga., 304. Repeating charge: 17 Ga., 351. Duty of Court when not requested to charge: 17 Ga.. 444. Withdrawal of charge by party requesting it: 24 Ga., 530. Erroneous charge growing out of mistake of facts: 24 Ga., 558; 30 Ga., 721. Ambiguous charge: 25 Ga., 184. "I apprehend the law to be this:" 25 Ga., 527. Erroneous charge or refusal: 26 Ga., 701; 44 Ga.. 251. Expression of doubt as to applicability of charge: 29 Ga., 36. Court need not apply law to facts when: 44 Ga., 593. Counsel's duty to request charges on material points: Ib. Where pertinent charge was requested and refused, new trial granted even if verdict may be sustained upon issues not in the request: 44 Ga., 638. Charge warranted by some evidence but in conflict with other evidence, to be given if requested: 45 Ga., 138. Charge right upon the controlling question: Martin vs Smith, March term, 1864; see, also, Jackson vs. Jackson, July terin, 1872: Hendrick vs. V. & T. R. R., January term, 1873; Smith vs. Brown: Ib. See Rule 5 and on it, 15 Ga., 189.

$3716. (3665.) On account of new evidence. A new trial may be Act of 1853-54, granted in all cases when any material evidence, not merely cumulative in its character, but relating to new and material facts, shall be discovered by the applicant after the rendition of a verdict against him, and shall be brought to the notice of the Court within the time now allowed by law for entering a motion for a new trial.

23748.

p. 47.

Diligence; 3 Kelly, 310; 9 Ga., 4; 16 Ga., 33; 24 Ga., 32; 26 Ga., 233-84; 28 Ga., 266; 33 Ga., 24, 174; 34 Ga., 110. Cumulative:" 3 Kelly, 310; 6 Ga., 276; 9 Ga., 413; 12 Ga., 337; 22 Ga., 76: 26 Ga., 684: 28 Ga., 79; 29 Ga., 257; 31 Ga., 138; 32 Ga., 294; 33 Ga., 50: 37 Ga., 459: 38 Ga., 312: 39 Ga., 718: 40 Ga., 237; 44 Ga., 354. Evidence to impeach: 9 Ga., 4: 13 Ga., 513; 25 Ga., 182; 34 Ga., 110; 39 Ga., 678, 718. Affidavit: 12 Ga., 461; 17 Ga., 106; 28 Ga., 576: 30 Ga.. 137; 31 Ga., 35; 34 Ga., 1. Rule stated: 12 Ga., 500; 31 Ga., 411; 39 Ga., 678. Material:" 14 Ga., 358: 16 Ga., 33; 17 Ga., 418; 30 Ga., 968; 31 Ga., 34, 138; 32 Ga.. 294; 33 Ga., 281; 34 Ga., 1, 78; 37 Ga., 676. After rendition: 24 Ga., 485; 28 Ga., 576; 37 Ga., 195. Evidence to prove mistake of witness: 25 Ga., 182: 37 Ga., 48; 38 Ga., 650. What is cumulative; 27 Ga., 339; 29 Ga., 338; 37 Ga., 459: 40 Ga., 657; 41 Ga., 657; 42 Ga., 462, 623; 43 Ga., 407, 444, 596; Bryan vs. Walton, March term, 1864. Negative evidence: S Ga., 201. Newly discovered evidence of admissions that party had recovered wrongfully: 31 Ga.. 128. Discovered during trial: 32 Ga., 672. On this section: 34 Ga., 565. Competency of wife not known until after trial: 39 Ga., 660. Newly discovered evidence as to insanity of party who was witness for himself: 41 Ga., 263. What is diligence: 41 Ga., 426. Must be such as to probably change verdict: 41 Ga.. 657. Illegally admitted: 42 Ga., 265. The requisites will be closely scanned by the Court: 42 Ga., 462. Where such evidence is reconcilable with the other proof in the case: 1b. See, also, Bryan vs. Walton, March term, 1864; Hughes vs. Coursey, July term, 1872; Arnold vs. State: Ib.; Spann vs. State: Ib.; Jones vs. State: Ib.

$3717. (3666.) When the verdict is against evidence. The presiding Act of 1853-54, Judge may exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of evidence although there may appear to be some slight evidence in favor of the finding.

Stated in 1 Kelly, 610; 3 Kelly, 310; 4 Ga., 428; 8 Ga., 306; 9 Ga., 9, 504; 10 Ga.. 350 ; 11 Ga., 317 : 15 Ga.. 565; 16 Ga., 154, 203, 487; 17 Ga., 228; 19 Ga., 416, 432; 20 Ga., 652; 21 Ga., 261: 22 Ga., 499: 24 Ga.. 412, 591: 25 Ga., 576: 26 Ga., 325, 438, 524; 30 Ga., 112; 31 Ga., 198; 32 Ga., 464, 477; 33 Ga., 494; 34 Ga., 328; 36 Ga.. 56, 280, 424: 38 Ga., 293, 574: 39 Ga., 359; 41 Ga., 208; 45 Ga,, 523; King es. King, July term, 1872; Young vs. Moody, January term, 1873.

Article 2.-When, where, and how tried.

$3718. (3667.) Judge may grant on other grounds. In all applications for a new trial on other grounds, not provided for in this Code, the presiding Judge must exercise a sound legal discretion in granting or refusing the same according to the provisions of the common law and practice of the Courts.

Discretion of Judge: 1 Kelly, 610: 3 Kelly, 310: 7 Ga., 436; 16 Ga., 27: 19 Ga., 614: 24 Ga.. 412; 31 Ga, 365; 34 Ga., 375: 35 Ga., 271; 36 Ga.. 321, 595, 604; 37 Ga., 235, 557, 694; 38 Ga., 129; 40 Ga., 91, 135, 667; 42 Ga., 217; 43 Ga., 207; 44 Ga., 200; 45 Ga., 644: Reid vs. Whitfield, January term, 1873.

$3719. (3668.) Application to be made during term. All applications for a new trial, except in extraordinary cases, must be made during the term at which the trial was had, but may be heard, determined, and returned in vacation.

Stated in 1 Kelly, 252; 4 Ga., 157; 21 Ga. 216. Diligence in making application during term: 15 Ga., 550. Rule submitted upon agreement that he shall return his decision in twenty days: 21 Ga., 464. Extraordinary cases:" 23 Ga., 493. See Spann vs. State, July term, 1872; Carter vs. State, Ib.; O'Neal vs. State: Ib.

§3720. (3669.) Another Judge may grant new trial. A Judge may decide a motion for a new trial who did not try the case either when he is presiding in the Court in which the motion is pending, or when he is named in the rule.

Stated in 1 Kelly, 306; 38 Ga., 594.

§3721. (3670.) Motion made after adjournment of Court. In case of a motion for a new trial made after the adjournment of the Court, some good reason must be shown why the motion was not made during the term, which shall be judged of by the Court. In all such cases, twenty days' notice shall be given to the opposite party. [And whenever a motion for a new trial shall have been made at the term of trial in any criminal case in this State, and overruled, or when a motion for a new trial has not been made at such term, in either event no motion for a 1. new trial from the same verdict shall ever be made or received, unless the same be an extraordinary motion or case, such as is provided for in section 3719 of this Code, and there shall be but one such extraordinary motion ever made or allowed.] (a.)

Where judgment excepted to is affirmed in Supreme Court, complainant is not concluded from making the motion under this section upon any grounds not specified, in the dismissed bill of exceptions: 42 Ga., 41, Motion to reinstate case controlled by this section: 44 Ga., 161. See last case cited under section 3719. "Twenty days:" 21 Ga., 216; 30 Ga., 677.

(a) Act of 24th

$3722. (3671.) Time of new trial. When a new trial has been granted by the Superior Court, the case shall stand upon the docket for trial at the next term as though no trial was had, and if said new trial is ordered by the Supreme Court, said case shall stand for trial at the next term of said Superior Court after the remitter is returned from the Supreme Court, and shall be subject to the rules for continuances provided in this Code. [Section (3672.) Included in sections 3712 and 3713.]

$3723. (3673.) Rules nisi must be served. In all applications for a new trial the opposite party shall be served with a copy of the rule nisi, unless such copy is waived.

Served: 21 Ga., 216; 30 Ga., 677.

When, where, and how tried.

§3724. (3674.) A supersedeas, when. A rule nisi for a new trial shall not operate as a supersedeas, unless so ordered by the Court, in which case the Court may demand bond and security for the eventual condemnation money, when the exigency of the case requires it.

See old Rule 61; 4 Ga., 102.

GENERAL NOTE.-Evidence conflicting-new trial refused: 2 Kelly, 173: 3 Kelly, 310: 4 Ga., 170, 335, 360; 6 Ga., 276, 483; 7 Ga., 269, 283; 8 Ga., 190, 306: 9 Ga.. 9; 10 Ga., 350; 11 Ga., 203, 459; 13 Ga., 34, 320, 359; 14 Ga.. 28, 118; 16 Ga., 203; 17 Ga., 418; 18 Ga., 13; 19 Ga.. 274; 20 Ga., 50, 190: 21 Ga., 161: 22 Ga., 211, 283; 24 Ga., 171, 530; 25 Ga., 212; 26 Ga., 447, 622; 27 Ga., 125, 239, 432: 28 Ga., 320; 29 Ga., 134, 341; 30 Ga., 116, 968, 944; 31 Ga., 232; 32 Ga.. 39. 105; 33 Ga., 24, 131, 219: 34 Ga., 19, 262, 506; 35 Ga., 100, 247: 36 Ga., 332; 37 Ga., 51, 102, 188, 258: 38 Ga., 284, 555: 39 Ga., 79, 119, 168, 394, 708; 40 Ga., 94, 115, 127, 197, 657; 41 Ga., 48, 63, 71, 125, 186, 208, 215, 295, 439, 584, 604, 652, 675; 42 Ga., 35, 64, 121, 146, 148, 163, 168, 217, 270, 443; 44 Ga., 18, 46, 55; 45 Ga., 43, 123, 154, 301, 517, 585. This principle applies where the facts are submitted to the Judge: 13 Ga., 223; 41 Ga., 426. When granted on issue of fraud: 4 Ga., 170; 30 Ga.. 107. Attempt to stifle evidence: 5 Ga., 575; 33 Ga., 117. Mere irregularities no ground when justice has been done: 5 Ga., 456: 10 Ga., 429: 31 Ga., 671; 43 Ga., 281. Decisions granting new trials favored: 6 Ga., 185; 7 Ga., 436; 24 Ga., 412: 26 Ga., 164, 290; 27 Ga., 207; 35 Ga., 271; 36 Ga., 321, 604; 37 Ga., 557; 38 Ga., 129; 40 Ga., 91, 135, 667. Refusal to grant continuance: 7 Ga., 2; 14 Ga., 8, 22, 641; 21 Ga., 581; 22 Ga., 212; 26 Ga., 593: 30 Ga., 10; 32 Ga., 403; 33 Ga., 98; 40 Ga., 529; 45 Ga., 538. Immaterial error: 7 Ga., 484; 9 Ga., 504; 10 Ga., 253; 11 Ga., 225; 12 Ga., 213; 14 Ga.. 145; 15 Ga., 39; 20 Ga., 1, 589; 21 Ga., 132; 22 Ga., 417; 23 Ga., 292; 25 Ga., 479; 26 Ga., 171: 27 Ga., 266; 29 Ga., 134: 30 Ga., 281, 686; 33 Ga., 24: 36 Ga.. 615: 39 Ga., 119: 41 Ga., 84, 130, 675; 42 Ga., 306; Martin vs. Smith, March term, 1864. (See Act of 1859, p. 48.) When substantial justice is done: 7 Ga., 110: 24 Ga., 445; 39 Ga., 421; 40 Ga., 423; 42 Ga., 547: 43 Ga., 281. Excessive damages: 7 Ga., 200; 8 Ga., 113; 10 Ga., 37; 23 Ga., 500; 26 Ga.. 250; 39 Ga., 636. Plaintiff may remit excessive damages in bar of: 8 Ga., 113. What is unexcepted to-no ground of: 9 Ga., 9; 13 Ga., 431; 17 Ga., 146, 194; 18 Ga., 534; 28 Ga., 186. When rule nisi is granted upon one of the grounds taken: 10 Ga., 82. Application for-not favored: 10 Ga., 512. Writ of error does not lie to rule nisi: 12 Ga., 44. History of new trials: 15 Ga., 103. In ejectment cases: 1b. In possessory warrant cases: 15 Ga., 25. Effect of judgment severing judgment ordering new trial: 15 Ga., 91. No new trial if result must be the same: 16 Ga., 568. Overruling demurrer: 17 Ga., 96. Negligence of parties: 17 Ga., 439. Onus to show error on movant: 19 Ga.. 93. Refusal to allow counsel to argue law and facts: 19 Ga., 398. Provision in the old Constitution requiring the Judge to enter upon the minutes his reasons for his decision: 19 Ga., 435. Evidence withheld by complainant no ground for: 21 Ga., 345. Where rule nisi is submitted to the Judge by consent that he shall return his decision to the clerk within twenty days: 21 Ga., 464. On the twenty days' notice required by Act of 1799: 21 Ga.. 216; 30 Ga., 677. If answer to bill for discovery be read to jury by defendant against consent of complainant: 22 Ga., 345. May be refused on grounds in rule nisi, and granted on others: 22 Ga., 432. Application for-kept pending four years: 22 Ga., 566. Motion for made after motion in arrest of judgment: 23 Ga., 493. To correct mistake of witness: 25 Ga., 182; 37 Ga., 48. Facts upon which grounds are based must affirmatively appear: 26 Ga., 432. When none of the grounds separately warrant new trial, but from all it seems injustice has been done: 26 Ga,, 528. Outlaw cannot have: 27 Ga., 288. Where no motion for is made in Superior Court, Supreme Court will not hear case: 28 Ga., 25; 34 Ga., 339, 425; 35 Ga., 241: 36 Ga., 442: 37 Ga., 324; 40 Ga., 257. Motion to set aside and reinstate case equivalent to motion for new trial: 30 Ga., 191. Motion may be granted after having, at instance of same party, set aside the verdict and declared mistrial: 30 Ga., 646. Certificate of Judge as to refusal of new trial: 30 Ga.. 724. Bill of exceptions ambiguous on important point: 30 Ga., 287. Where judgment complained of gives plaintiff all he claims: 30 Ga., 686. On issue of adulterine bastardy: 32 Ga., 316. Bill for new trial: 32 Ga., 294: 38 Ga., 654. What transpires privately between Court and counsel, no ground for: 32 Ga., 499. Forgetfulness by party of material facts at the trial: 33 Ga., 159. New trial granted for a better hearing of the cause: 37 Ga., 694; second motion for: 38 Ga., 650. Grounds must be included in motion: 40 Ga., 191. Conflicting statements of applicant on first and second trial for: 40 Ga., 232. Where prisoner is forced to trial when too sick to have the use of his faculties: 40 Ga., 529. Inquiry by the Judge if parties are content with his rulings: 41 Ga.. 84. New trial not granted in some cases, even though Supreme Court is not fully satisfied: 42 Ga., 547. If the declaration contains no cause of action, but there has been a verdict on it, and the Court has granted a new trial because the verdict is contrary to the evidence, the Supreme Court will affirm the judgment: 43 Ga., 163. Absence of witness when proof is presumptive: 44 Ga.. 449. Absence of counsel: 44 Ga., 588; 45 Ga., 28, 100, 538; Rust et al. vs. Ketchum, July term, 1872: Farmer vs. Terry: 1b. When a bill of exceptions was carried to the Supreme Court without a motion having been made in the Court below for a new trial, which bill of exceptions was dismissed, and the plaintiff in error, at a subsequent term of the Superior Court, makes a motion for a new trial, he can only include in the motion such grounds as were not included in the bill of exceptions: 45 Ga., 100. The fact that some of those grounds were imperfectly stated, and might possibly have been stricken out on a motion of defendant in error, does not vary the rule: 1b. See, also, Hughes vs. Coursey, July term, 1872; Simmons vs. Grice: lb., and Massey vs. Allen, January term, 1873; Jones vs. State: Ib., Cogswell vs. State: Ib.

"

RULE OF COURT No. 49.-Rule stated: 1 Kelly, 252; 3 Kelly, 217: 8 Ga., 111; 5 Ga.. 399: 13 Ga., 403. Such approval to be entered on the minutes-at what term: 1 Kelly, 252; 5 Ga., 399. Such entering, amounts to approval: 15 Ga., 507. Unless filed, new trial not granted: 4 Ga., 101: 9 Ga., 504. The brief need not be entered on the minutes: 7 Ga., 436; 21 Ga., 214. Documentary evidence must be attached: 8 Ga., 111. Proper method of making out the brief: 8 Ga., 111. Agreement of parties to the brief entered on minutes nunc pro tune: 10 Ga., 93. Brief entered nune pro tune: 17 Ga., 70. Revision:" 18 Ga., 534. Approval:" 20 Ga., 762. To be filed, when: 23 Ga., 493. Where the brief has been agreed upon by the parties, it is sufficient: 25 Ga., 158. Brief, how amendable: 25 Ga., 158; 41 Ga., 577. Failure to file brief when the motion is made-how cured: 30 Ga., 249. Where a case was tried, and verdict rendered in favor of plaintiff, and a motion made for a new trial, and the Judge who heard the case went out of office before the motion was disposed of, and no brief was agreed upon by the parties, or proved and certified by the Judge to be correct, the Judge who succeeded to the bench committed no error in refusing to grant a new trial: 38 Ga., 594; Smith vs. Brown, January term, 1873. On last clause of: 40 Ga.. 189. Order extending time to make out brief: 41 Ga., 60. Granting rule nisi presumptive approval: 41 Ga., 577. See, also, 44 Ga., 266, 605, 639.

GROUNDS FOR-RELATING TO SURPRISE.-Surprise by absence of witness: 5 Ga., 75; 34 Ga., 275: at statement of: 44 Ga., 543. Surprise in mistake of witness: 8 Ga., 136. Surprise by honest mistake of party or counsel: 10 Ga., 143. Surprise in insufficiency of admissions: 12 Ga., 500.

Article 1.-How and by whom interposed.

GROUNDS FOR-RELATING TO VERDICT.-Against law: 4 Ga., 193; 9 Ga., 408; 14 Ga., 119; 41 Ga., 94: Carter vs. Meriwether, January term, 1873. After two concurrent verdicts: 4 Ga., 193 after three concurrent verdicts: 26 Ga., 432; 42 Ga., 506. Where verdict is in conformity to charge, and charge is not complained of: 6 Ga., 213. Failing to cover all issues: 8 Ga., 201: 14 Ga., 119. Verdict contrary to charge: 9 Ga., 108; 40 Ga., 266: 41 Ga.. 130. Verdict contrary to erroneous charge: 15 Ga., 155; 26 Ga., 121; 30 Ga., 560, 598; 31 Ga., 194, 426; 34 Ga., 348; 36 Ga., 526, 648; 37 Ga., 94. Verdict unsigned: 14 Ga., 18. Onus is on complainant to show that it was erroneous: 19 Ga., 93. Uncertainty of--where objec tionable part cannot be set aside with justice to both parties: 27 Ga., 469. Mistake in: 30 Ga., 191; 37 Ga.. 324. Where Court has set aside verdict as illegal, no error to grant a rule nisi for new trial: 30 Ga., 646. Where different verdict could not stand: 30 Ga., 958. Verdict_for amount greater than evidence warrants: 31 Ga., 140. Arrived at on Sunday: 31 Ga., 625. Defendant cannot complain that the verdict is less than plaintiff is entitled to: 32 Ga., 406. Where jury mistake the character of the case or evidence: 36 Ga., 280. Where the Court below is satisfied-new trial cannot be granted, though the Supreme Court suspects strongly that verdict is wrong: 37 Ga., 35.

GROUNDS FOR-RELATING TO JURY. (In civil cases.)-Public communication in Court by the jury with the Judge: 1 Kelly, 200. Dispersal of: 6 Ga., 458: 12 Ga., 272; 23 Ga., 222; 33 Ga., 56; 36 Ga., 380; 37 Ga., 332. Where paper not in evidence is delivered to jury: 7 Ga., 283. Previously expressed opinion; 7 Ga.. 139. Private communication: 7 Ga., 397. Where the jury heard the statement of one of their fellows in relation to the case in their box: 9 Ga., 504. Juryman entertained by successful party: 11 Ga., 203; 17 Ga., 364. Where party gets improperly before jury papers favorable to one: 17 Ga., 364. Interrogatories carried out to jury: 19 Ga., 303. Where two of the jury had been of a former jury which had made a mistrial in the case: 20 Ga., 660. Objection to form of oath: 23 Ga., 493. .Where juror was relative of one of the parties: 26 Ga., 431; 39 Ga., 660, and Rust vs. Shackelford, January term, 1873. Statement calculated to hasten deliberations of: 31 Ga., 626; 44 Ga., 473; Hewitt vs. Brummell, July term, 1872. Expression of opinion by witness at dinner table in presence of juror: 32 Ga., 325. Improper conduct known to counsel before verdict: 36 Ga., 332. Refreshments furnished without direction of Court: 37 Ga., 195. Where jurors conversed with another person in regard to the case: 38 Ga., 216. Where two jurors, as members of grand jury, had found true bill against defendant for some trespass: 39 Ga., 118. When jurors took to their rooms receipts ruled out because unstamped: 39 Ga., 119. Where parties, by consent, took intoxicated juror, who afterwards drank more ardent spirits: 40 Ga., 156. Juror not on list: 40 Ga., 253. Statement of legal reason for request by counsel requesting Court to ask jury if they had agreed on their verdict: 41 Ga., 464. Where juror is treated by one of the parties in presence of other: 42 Ga., 64. Waiver of objection to such conduct by latter: 1b. Remarks of father of one of parties heard by jury: 44 Ga., 200. See, also, Anderson vs. Green, July term, 1872. For criminal law on this subject, see notes in Penal Code.

$3725. (3675.) Claims to be on oath.

When any sheriff or other Act of 1739, C.

officer shall levy an execution on property claimed by a third person, not p. 535.

p. 533.

How and by whom interposed.

a party to such execution, such person, his agent or attorney, shall make oath to such property.

$3726. (3676.) Bond and security for damages. The person claiming such property, or his agent or attorney, shall give bond to the sheriff or Act of 1821, C. other officer, as the case may be, with good and sufficient security, in a sum [not larger than double the amount of the execution levied, and where the property levied on is of less value than the execution, the amount of the bond shall be double the value of the property levied (a) Acts of 1872, upon,] (a) at a reasonable valuation, to be judged by the levying officer, conditioned to pay the plaintiff all damages which the jury on the trial of the right of property may assess against him, in case it should appear that said claim was made for the purpose of delay only.

P. 41.

Act of 1811, C. 1841, C. p. 536.

p. 532. Act of

Surety may control fi. fa.: 9 Ga., 179. Affidavit sufficient if it asserts the right of the property to be in deponent: 17 Ga., 615.

§3727. (3677.) Sale must be postponed, when. Affidavit and bond being made and delivered as required in the preceding section, it shall be the duty of the sheriff or other levying officer to postpone the sale of said property until otherwise ordered.

$3728. (3678.) Forthcoming bond may be given, etc. In all cases where a levy is made upon property that is claimed by a third person, and such person shall desire the possession thereof, it shall be the duty of the sheriff or other levying officer to take bond with good security for a sum equal to double the value of the property levied on, to be estimated by the levying officer, for the delivery of such property at the time and place of sale, provided the property so levied upon shall be found sub(a) Acts of 1872, ject to such execution: [Provided, That it shall not be lawful to require or take a forthcoming bond for real estate.] (a.)

p. 40.

p. 589.

21900.

Suit on such bond: 6 Ga., 260; 9 Ga., 42. What a defense: 9 Ga., 42; 29 Ga., 427. Agent cannot execute: 9 Ga.. 208. When given sheriff not bound to transfer property to claimant: 15 Ga., 518. Misnomer in: 26 Ga., 228. Evidence in suit on: 29 Ga., 427. This is a privilege to the claimant, and not a requisite with which he must comply: 29 Ga., 539.

The claim bond shall

$3729. (3679.) Bonds made payable, to whom. be made payable to the plaintiff in execution, and the forthcoming bond shall be made payable to the sheriff.

Payable to sheriff: 5 Ga., 576; 32 Ga., 354; payable to plaintiff: 17 Ga., 615.

$3730. (3680.) Bond recoverable on failure. Bond and security being given, as provided in the previous section, it shall be the duty of the sheriff or other levying officer to leave such property in the possession of such claimant, and in case the said claimant or his security should fail to deliver said property, said bond shall be made recoverable in any Court having cognizance of the same.

$3731. (3681.) Partner or joint owner may claim for all. One of sevAct of 1833, C. eral partners or persons jointly interested may make the affidavit and execute the bond in the name of the firm or persons jointly interested, who shall be bound thereby as though each individual had signed it himself. $3732. (3682.) Tax fi. fa. levied, etc. When any execution may be issued against any tax collector or tax payer for taxes due the State, or any county thereof, and the sheriff or other officer shall levy the same on property claimed by a person not a party to such execution, such claimant shall make oath as herein provided in the case of other claims, and give bond as provided in section 872, and the same proceedings shall be had thereon as provided for the trial of the right of property, except that such trials shall be had in the county wherein the levy was made.

$3733. Claims may be made in forma pauperis. [In all cases where