Hamilton vs. Conyers. cases, upon the discretion of the Court, namely: that it must not be grossly abused, there is the further special limitation, that terms can only be imposed where the party is guilty of negligence; and further, the terms must not be such as to aflect "the real merits of the cause in controversy." Now in view of all this legislation, this Court was called on for the first time in the case of Snellings vs. Darrell. We ascertained that pleadings which this Act authorizes to be amended, has a restricted as well as a general meaning; the former beginning with the declaration, and terminating with the issue of fact, or of law, or both; the other including bills of exceptions, writs of error, motions for new trials, and every thing which transpires during the progress of the cause, from its inception to its consummation. The question was, in which sense did the Legislature intend to use the term in the statute? With the noon-tide blaze of light beaming upon us from the legislative history of amendments in this State, could any Court hesitate to conclude that the term "pleading" was designed to be used in its broad sense? We think not. If a defendant may amend his affidavit of illegality, either by the insertion of new grounds, or the correction of errors and mistakes in the original affidavit, as he may do, (Cobb, 518,) surely he may amend a motion for a new trial. The Act of 1850, allowing affidavits of illegality to be amended, I look upon as a legislative declaration, in advance, as to the proper construction of the Act of 1853-54, so far as it relates to new trials. Judgment reversed BENNING J. concuring. I I think the judgment of the Court below, erroneous. think it, in conflict with Snelling vs. Darrell 17 Ga. R. and with Candler vs. Hammond, decided at Milledgeville, November, 1857. Hamilton vs. Conyers. It is true, that in Powell vs. Howell, decided at Macon, January, 1857, there are dicta not reconcilable with these two cases. But those dicta were not required by the judgment, which was as follows: “Reversed, upon the ground, that there was no service of the rule nisi upon the opposite party." MCDONALD, J., dissenting. The cause was tried in the Court below at March Term 1857. A verdict was rendered for the defendant. During that Term of the Court, the counsel for the plaintiff made out a motion for a new trial, in writing, on fourteen grounds. The Court refused to pass upon it without argument. When the Court was requested to pronounce its judgment upon it, no brief of evidence had been made out and agreed upon by counsel or approved by the Court, there was no motion entered on the minutes and nothing on the docket. That it was reduced to writing by the counsel who had determined to move for a new trial, did not make it a proceeding of the Court. That the opposing counsel acknowledged service of it, and waived further notice, did constitute it a proceeding of the Court if it was not one without it. The acknowledgment of service saved the party the trouble of making a copy of the paper and serving it, but it did not impart to it a character or value which it did not possess. The Clerk of the Court below, who was bound by law to send up a complete transcript of the entire record, sent up no motion for a new trial, not even the statement of such a case on the docket. There was, therefore, no motion in the Court. The judgment of the Court below complained of, was the refusal of the amendment of the rule nisi. If there was no rule nisi, there could have been no amendment. This motion was made at the Term of the Court next after the trial; but if there was no motion at the term, the motion to amend ought not to have been sustained. But it is assigned as a rea Hamilton vs. Conyers. son, that the motion was not submitted in proper form, and the brief of evidence filed, that it was postponed to an adjourned term of the Court and that the leading counsel in the cause had leave of absence at that adjourned term. This leave of absence was nothing more than an assurance to the counsel to whom it was given, that their cases in Court should not be prejudiced by their absence. It was no license to them to postpone to a subsequent term of the Court, that which must have been done at that term or not at all. If a new trial could not have been moved for at a term of the Court, subsequent to that at which the trial was had, the motion to amend, considered as an original motion for a new trial ought not to have been allowed. This Court has very fully considered the law in such cases and at a very early day gave its exposition of it. In the case of Graddy vs. Hightower e al., it decided that a rule nisi for a new trial will not be granted in this State, at the instance of a party, unless application is first made during the term at which the judgment was rendered, and unless the application appear on the minutes of that term. 1 Kelly 252. It also decided that the brief of the evidence must be agreed upon by the parties or their counsel or approved by the Court, and such agreement or approval must be entered on the minutes at the term of the Court at which the judgment is rendered, and the new trial is applied for. This case settled the law, and seems to me to have settled it very satisfactorily as to the time within which a new trial must be moved for, and whe. the brief of the evidence must be filed. We have no statute fixing the time for moving for new trials, but the act of February 1854, to regulate the granting of new trials, recognizes the existence of a legal period, within which motions for new trials may be entertained. Pamph. 47. The Legislature must have considered the adjudication above referred to as settling the law on that subject in this State. In that case, at the term when the verdict was rendered, a rule nisi for a new trial was moved for orally by the coun Lewis vs. Wayne, adm'r. sel of the defendant. A brief of the testimony, as claimed by the counsel of the movant, was presented to the Judge. The brief was objected to as imperfect by the counsel of the opposite party, and a protest against its completeness was formally made by them. No supersedeas was entered and no brief of the testimony agreed upon by the parties or approved by the Court. The minutes of the Court showed no action whatever touching the rule nisi. No motion in relation thereto was entered on the minutes. The presiding Judge took time to consider the application for the rule and took the papers with him, and some fifteen or eighteen months afterwards granted it in vacation. The rule was made absolute and a new trial was granted. This Court set that judgment granting a new trial aside, on the grounds already stated. There was no motion for a new trial in that case, because the minutes of the Court at the term the verdict was rendered showed none. The minutes of the Court show none in this case. If there was no motion, there was nothing to amend, As there was no rule nisi, the order to dismiss was supererogatory and useless. CURTIS LEWIS, plaintiff in error, vs. RICHARD WAYNE, adm'r, &c., defendant in error. L. gives a mortgage to secure H. & H. for certain funds advanced by them for him, before that time, as well as to indemnify and save them harmless for any advances acceptances, or endorsements, made thereafter by the mortgagees for and on account of the mortgagor. Held, That upon the production by mortgagees of drafts and acceptances, corresponding to the description of indebtedness, specified in the instrument that the presumption was that they had been paid by the holders out of their own funds, and upon the credit of the mortgage and not out of the funds of the drawers. Lewis vs. Wayne, adm'r. Foreclosure of mortgage, from Spalding county. Decision by Judge CABINESS, at November Term, 1857. This was a proceeding by Richard Wayne, administrator of Robert H. Griffin, deceased, assignee of Hamilton & Hardeman, to forclose a mortgage of a house and lot, executed by Curtis Lewis to said Hamilton & Hardeman. The mortgage bears date 1st June, 1849, and was made by Lewis to secure Hamilton & Hardeman for certain funds, before that time, advanced, as well as to indemnify and save them harmless for any advances, acceptances or endorsements, made thereafter by them for and on account of said mortgagor. The usual rule nisi was issued and served upon the mortgagor, who appeared and showed for cause why judgment absolute should not be entered against him : 1. Because no copy of the mortgage deed is filed with the petition for foreclosure. 2. Because there is no averment in the petition that the mortgage has any words of negotiability or assignability, by which mortgagees were authorized to assign the same. 3. Because a mortgage deed assignable, must be assigned by an instrument or endorsement under the hand and seal of the mortgagee, and if not so assigned, any action thereon must be in the name of the mortgagee for the use of the equitable owner or holder thereof. 4. Because there is no averment in the rule nisi, that the mortgage has been assigned in any way, verbally, or in writing. 5. Because there is no profert made, in said rule, of the mortgage. 6. Because no averment or exhibit of debts due to or liabilities incurred by the mortgagee, is made either in the petition or rule. 7. Because the drafts alleged to have been accepted, bear date after the execution of the mortgage. |