chancery suits "where the subject-matter of the litigation is under the value of ten pounds:" Daniell's Ch. Pr. 431. The late act allowing suits at law against trustees, etc., will doubtless go far to relieve courts of equity of such suits as this in the future. Judgment reversed. WALKER V. WELLS. [25 GEORGIA, 141.] EXTRINSIO EVIDENCE IS ADMISSIBLE TO SHOW THAT PERSON MEANT IN GRANT TO "BERRY STEPHENS, ORPHAN," was William Henry Stephens, a child of Berry Stephens, deceased; there being no such person as Berry Stephens, an orphan. EJECTMENT. The plaintiff introduced a grant of the lot in controversy from the state to "Berry Stephens, orphan, of the six hundred and thirty-third district of Dooly county," and then offered in evidence several depositions, tending to show that one Berry Stephens had, in 1823, married Elizabeth White, and died a few years thereafter, leaving an only child, William Henry Stephens; that this child lived with his mother at his grandfather's, in the six hundred and thirty-third district of Dooly county, at the time of giving in for draws in the Cherokee land lottery, and that his mother gave in for Berry Stephens' orphan, William Henry Stephens; that his mother was illiterate, and the mistake in the name probably occurred thereby; that there was no other person in the district to whom the description could apply; and that the friends of William Henry Stephens always regarded the lot as belonging to him, and have paid the taxes thereon as his property. An objection to the admission of this evidence, on the ground that it was in contradiction of the grant, was sustained, whereupon the plaintiff excepted, and submitted to a nonsuit. Walker, for the plaintiff in error. Akin and Wofford, contra. By Court, BENNING, J. Were the depositions admissible as evidence? They were if the case was one of latent, and not one of patent, ambiguity. Lord Bacon's maxim is: Ambiguitas verborum latens verificatione suppletur; nam quod ex facto oritur am biguum verificatione facti tollitur. And this case was one of latent ambiguity. Lord Bacon says: "Patens (ambiguitas) is that which appears to be ambiguous upon the deed or instrument; latens is that which seemeth certain and without ambiguity, for anything that appeareth upon the deed or instrument; but there is some collateral matter out of the deed that breedeth the ambiguity." In the present case the grant is plainly a grant to Berry Stephens, an orphan; it is therefore a grant upon the face of which there is nothing ambiguous. But it turns out that there was never such a person as Berry Stephens, an orphan. It must be that some person, not a mere name, was meant. Who, then, was the person meant by the name? This is the necessary question. Who he was is ambiguous-doubtful. Here, then, is "a collateral matter out of the” grant "that breedeth the ambiguity." The case, therefore, is one of latent ambiguity; "therefore, it shall be holpen by averment." Of course averment may be supported by proof: 1 Greenl. Ev., sec. 297. To this effect are Greene v. Barnwell, 11 Ga. 283; Henderson v. Hackney, 16 Id. 527; S. C., 23 Id. 383 [68 Am. Dec. 529]; Ford v. Alcorn, MS. opinion; Bowens v. Slaughter, 24 Ga. 338 [ante, p. 135]; and the act of December 22, 1857, declaratory of the law of evidence in such cases as the present. To the contrary, I think, are Sykes v. McRory, 10 Id. 465 [54 Am. Dec. 402]; and Tison v. Yawn, 15 Id. 491 [60 Am. Deo. 708]; and therefore they are, in my opinion, wrong. The decision made by this court in this case, when the case was in the form of a bill to correct the grant, went upon the assumption that there was such a person as Berry Stephens, an orphan, and that it was he to whom the grant was really issued. On that assumption the decision still seems to us right: Walker v. Wells, 17 Ga. 550 [63 Am. Dec. 252]. We think, then, that these depositions ought to have been received. They merely went to show who was the person meant by the name and description, "Berry Stephens, orphan," there never having been any person in existence bearing that name and description. The court having excluded the depositions, it follows that, in our opinion, there ought to be a new trial. New trial granted. EXTRINSIC EVIDENCE IS ADMISSIBLE TO IDENTIFY GRANTEE IN DEED Scanlan v. Wright, 25 Am. Dec. 344; Henderson v. Hackney, 68 Id. 529; but see Sykes v. McRory, 54 Id. 402; Tison v. Yawn, 60 Id. 708. The principal case is cited in Tuggle v. McMath, 38 Ga. 650, on a similar state of facts, to the point that a latent ambiguity being presented, parol evidence was admissible, not to prove a mistake in the name of the grantee, but to give effect to the grant, by showing the person intended as a grantee, HAWKINS v. STATE [25 GEORGIA, 207.] WITNESS CANNOT BE ASKED WHETHER HE BELIEVED DECEASED INTENDED TO KILL ACCUSED, from the conduct, countenance, and language of the deceased immediately preceding the homicide, in order to reduce the crime to manslaughter. HOMICIDE WILL BE ATTRIBUTED TO DELIBERATE REVENGE AND PUNISHED AS MURDER, if sufficient time has elapsed between the provocation and the killing for reason to resume her sway. MURDER. The opinion states the facts. Walker and Francis, for the plaintiff in error. Longstreet, solictor-general, for the state. By Court, LUMPKIN, J. It seems in this case that prisoner and deceased were gambling in a crib; a quarrel and fight took place; Hawkins came out and threw stones or brickbats at Scott, and punched him through the cracks of the crib. The last stone thrown was supposed to have hit Scott, as he did not speak afterwards. Hawkins then left for his house, saying he would be back in a little while. Scott came out, and was standing with witness Baldwin, when Hawkins returned with two horseman's pistols in his hands, loaded with buckshot; when he got within twenty-three or twenty-four steps of Scott, Scott remarked that Hawkins was too mean to live, and that he intended to kill him; witness does not know whether Hawkins heard this remark, but thinks he might have heard it; Hawkins fired and killed Scott, eight of the shot taking effect, and upon this testimony he was found guilty of murder by the jury. A new trial was moved for on two grounds. 1. Because the court refused to allow defendant's counsel to ask the witnesses who were present at the killing whether from the conduct, countenance, and language of the deceased, immediately preceding the homicide, they believed deceased intended to kill the accused; 2. Because the court charged the jury that if they should find that between the provocation given and the killing there was sufficient time for the voice of humanity to have been heard and reason to have resumed her sway, whether in this case the fact was so or not, the killing was murder, and not manslaughter. The application was refused, and to reverse this judgment this writ of error is prosecuted. Was the court right in refusing to allow the witnesses to testify as to their belief as to what was the purpose and intention of Scott? In Hudgins v. State, 2 Ga. 173, this court held that the opinion of a witness, as to the intention of the deceased in approaching the slayer, is not admissible. The same rule is laid down in the case of State v. Scott, 4 Ired. L. 409 [42 Am. Dec. 148]. The court say: "The belief that a person designs to kill me will not prevent my killing him from being murder, unless he is making some attempt to execute his design; or at least is in an apparent situation to do so; and thereby reasonably induces me to think that he intends to do it immediately." Here there was certainly no such purpose in the mind of the deceased, as he had no weapon of any sort. Prisoner must have known that Scott was unarmed. The witnesses were not asked if they thought that Scott intended to kill Hawkins, at the time of the homicide. To such a question, there could have been but one answer. As to the charge of the court, it was in the terms and language of the code: See div. 4, sec. 7, Cobb's Dig. 783, 784. Provocation by threats will not be sufficient to free the slayer from the guilt of murder. And if sufficient time has elapsed for reason to resume her sway, the killing shall be attributed to deliberate revenge and punished as murder. Here the menaces were evidently made after Hawkins had determined to kill Scott, for they were made after he returned from his house with deadly weapons; and it was very doubtful whether the words of Scott were heard at all by Hawkins. They were addressed to the witness, and not to Hawkins: See Russell on Crimes, 433, 442, and the authorities there cited; Whart. Crim. L. 375, 377; Roscoe's Crim. Ev. 724, 729–731. But what provocation was given in this case, to justify the uncontrollable passion relied on in this case, in mitigation of this homicide? Hawkins seemed to have got the best of the fight in the crib; he continued to assault Scott after he came out; he left him in the crib, hastened home, a distance of two hundred and fifty yards, procured his pistols, returns, and executes his murderous purpose, evidently formed before he left Scott. It will never do to tolerate such a plea—I had almost said pretense; no, never: Ray v. State, 15 Ga. 244, 245. Human life is sacrificed at this day,. throughout the land, with more indifference than the life of a dog, especially if it be a good dog. Scott may not have been a good citizen, still he was ■ human creature, under the protection of the laws of the state; and even in his person the punitory power of the government must be vindicated. Cain was the first murderer, but who is the last is known only to those who have read the morning papers. If this crime goes unpunished, let our skirts at least be free from the stain of blood-guiltiness. Judgment affirmed. WITNESS CANNOT GIVE OPINION THAT DECEASED INTENDED TO KILL AOOUSED: See Keener v. State, 63 Am. Dec. 269; also Stewart v. State, 53 Id. 426, and note. LAPSE OF TIME Between PROVOCATION AND KILLING AS DETERMINING CRIME TO BE MURDER OR MANSLAUGHTER: See Anthony v. State, 33 Am. Dec. 143; State v. Hill, 34 Id. 396; McWhirt's Case, 46 Id. 196. THREATS BY DECEASED, WHEN ADMISSIBLE IN TRIAL FOR MURDER: See Campbell v. People, 61 Am. Dec. 49, and note discussing the question; Keener v. State, 63 Id. 269, and note. Evidence of threats by the deceased against the prisoner uncommunicated to the latter, could not have influenced his conduct, and are not admissible in evidence: Hoye v. State, 39 Ga. 722; and also malice will be applied in all cases where life is taken for words, threats, or menaces without other provocation: Braswell v. State, 42 Id. 613, both citing the principal case. BIGBY v. POWELL [25 GEORGIA, 244.] DAMAGE AS WELL AS FRAUD MUST BE SHOWN to entitle a complainant in equity to relief on the ground of fraud. COUNSEL IS NOT JUSTIFIED IN RELYING ON STATEMENTS OF OPPOSING COUXSEL as to the contents of a bill of exceptions presented to him for his acknowledgment of service, and equity will not relieve against the consequences thereof. The bill ought to have been examined. WAIVER OF ERRORS ASSIGNED IN RECORD MUST BE AVAILED OF AS DE FENSE BY PLEA MERE STATEMENT OF SUPREME COURT DURING ARGUMENT BEFORE IT CANNOT SETTLE LAW, nor entitle a party to an equity, when there is none without it, and the statement is not sustained by the law. PARTY JOINING IN ISSUE ON ASSIGNMENT OF ERROR THROUGH MISREPRE- BILL in equity to enjoin actions at law. The bill alleged that the complainant had in 1847 brought an action of trover against one John B. Russell to recover three negroes; that in 1850 a verdict was obtained by Russell, but in 1853 the verdict was set aside and a new trial granted, and the complainant thereupon had & verdict in his favor against the defendant, as administrator, Russell having died; that judgments antered |