Davidson rs. Lawrence. or less. Together with all and singular the rights, members and appurtenances thereof whatsoever to the said lots or parcels of land, being, belonging or in any wise appertaining, and the remainders, reversions, rents, issues and rights thereof, and every part thereof: To have and to hold the said lots or parcels of land, and all and singular the premises, and appurtenances thereunto belonging, as aforesaid, and every part thereof unto the said Norman Dart and Newbold Lawrence, their heirs and assigns forever, and the said Francis C. Taylor and his heirs, the said lots or parcels of land and premises aforesaid, and every part thereof, unto the said Noman Dart and Newbold Lawrence, their heirs and assigns, against himself, the said Francis C. Taylor, and his heirs, and all and every other person and persons whomsoever, shall and will warrant and forever defend by these presents. "In witness whereof the said Francis C. Taylor hereunto set his hand and seal the day and year first above written. "FRANCIS C. TAYLOR, [L. S.] (Signed) "Sealed and delivered in the presence of (Signed) "ROBERT PHILIP, "RICHARD ALLEN, J. P." There was also evidence to show that other property had been conveyed to the same grantees by Taylor for the same purpose, or in payment of his debts, and that this property had been lost both to the creditors and Taylor. It did not appear by whose fault it had failed to be productive, but that Taylor had claimed before his death that the debts were paid and a balance due him. The debts were in account, and created in 1848. The jury returned a verdict for the defendant. The complainant moved for a new trial upon the following grounds: 1st. Because the Court erred in charging the jury, “that if the debts, to secure which the conveyance in question was made, were barred, the land reverted to the grantor." 2d. Because the Court erred in refusing to charge, "that the title of the grantee could not be divested by proof, that Davidson vs. Lawrence. the balance of the debts, to secure which the conveyance was made, were barred, it appearing at the same time that the debts had never been wholly paid off." 2d. Because the verdict was contrary to the law and the evidence. The Court granted the new trial, holding that the conveyanee was made as payment and was so accepted by the creditors at the time, with privilege of redemption. To this ruling the defendant excepted, and now assigns the same as error. JOHN S. DAVIDSON; JOHN T. SHEWMAKE, for plaintiff in error. BARNES & CUMMING, for defendant. TRIPPE, Judge. The complainant, as the surviving grantee in a deed executed in 1849, and absolute on its face, seeks to engraft a parol trust thereon to him and his deceased co-grantee, to-wit: that it was made for the purpose of the property therein mentioned being applied to the payment of debts existing in account and contracted in 1848, and due to the grantees, severally, and divers other parties. There is no reference in the deed to any debts, nor indeed was there any satisfactory evidence what debts were intended to be secured. After the lapse of twentytwo years, and after the death of the alleged debtor, complainant asks to be allowed to set up the parol trust, and to enforce the collection of the debts that would be more than three times barred by the statute of limitation, unless they can be saved by the course he seeks to adopt. Prior to the Act of 1856, a verbal promise to pay a debt would take it out of the statute, or give a new point of time from which the statute would commence running. Since the passage of that Act a new promise to have that effect must be in writing. If there was no such written promise in this case these debts must have been barred, taking the most favorable view for complainant, in 1860. This is supposing that Davidson vs. Lawrence. verbal promises had been made up to the latest date that they could have been effective. Certainly they would have been barred when the suit was instituted by the Act of March 16th, 1869. Now is there any written acknowledgment of these debts at any time, as subsisting debts, from which a promise to pay could even be inferred? The record discloses none. The letter of Taylor, the intestate, does not admit them as subsisting debts, but it sets up, substantially, not only that they are paid but that there is an overplus of the property which discharged them, which rightfully should be his. Had the deed specified the debts, and provided for their payment, it might be that it would have given them the character of obligations or debts under seal. But, as stated, there is no reference to them in the deed, and no proof of any written acknowledgment of them. It would be manifestly against all legal principle to permit the parol trust to be proven by parol evidence, and then to hold that such testimony gave to simple contract debts existing in account, the status of specialties. Under this view there could have been no legal liability on Taylor's estate for these claims in 1871, which could have been enforced, independent of the Act of 1869. But whether that position be correct or not, we do not think that the allegations in the bill and the proof at the hearing entitle the complainant to any greater rights than a mortgagee would have, or than if the debts had been securities under seal. Twenty years will bar the right of action on instruments under seal, and the right of a mortgagee to foreclose. So, if the mortgagee receives possession of the mortgaged property under the mortgage, twenty years will bar the mortgagor's right to redeem, although the former, in such instances, is usually called a trustee for the latter: Morgan vs. Morgan et al., 10 Georgia, 300; 3 Johns. Ch. R., 129; 3 Atk., 313. We do not see from the facts in the record why the creditors in this case should have superior rights to a mortgagee to foreclose, or to a mortgagor to redeem. The mortgagee and this complainant both would sustain the relation of a creditor to the party against whom they may severally pro Powell vs. Westmoreland. ceed, and the object of each suit would be the same, to collect a debt. Why should not the presumption of the law as to payment, or the repose intended to be secured by the statute, enure to the benefit of the alleged debtor in the one case as well as in the other? We think this can be done, and that it does no violence to the rule, that the statute of limitation does not apply to a direct subsisting trust, a rule that denies the right to a trustee to set up the statute against his cestui que trust. Though the debts attempted to be enforced by complainant, had they been secured by instruments under seal, or by mortgage, might not be barred by the lapse of twenty years, in view of the different Acts suspending the statute of limitation, yet, according to the decisions made during the present term, in the cases of John George vs. James Gardner, and Moravian Seminary vs. W. H. Atwood, administrator, we hold that even had they been of that character, the Act of March 16th, 1869, would bar complainant's right of recovery. The verdict of the jury having been rendered in favor of defendant, the judgment granting a new trial is reversed. THOMAS S. POWELL, plaintiff in error, vs. WILLIS F. WESTMORELAND, defendant in error. Where the defendant, who was a surgeon and a physician, was prevented from being in attendance upon the Court at the time of the trial of his case, by an urgent call upon him in his professional capacity, which it was his paramount duty to obey, and it was made to appear, by affidavit, that his evidence would have been material, and that his counsel were deprived of his aid in the defense, this Court will not control the discretion of the Court below in ordering a new trial. New trial. Before Judge HOPKINS. Fulton Superior Court. October Term, 1872. For the facts of this case, see the decision. Powell vs. Westmoreland. D. F. & W. R. HAMMOND; A. C. GARLINGTON, for plaintiff in error. L. E. BLECKLEY; T. P. WESTMORELAND; JOHN MILLEDGE, for defendant. WARNER, Chief Justice. This was an action of trespass for an assault and battery, and a verdict for the plaintiff for $1,447 18. The error complained of is that the Court below granted a new trial, on the ground that the defendant was prevented from being present at the trial for the reasons stated in the following affidavits: "W. F. Westmoreland, the defendant in the above stated case, being duly sworn, deposeth and saith that he intended to be present at the trial of said case, and was about to leave his office, a few hundred yards from the Court-house, to attend Court on the morning of the trial, when he received a call, as physician and surgeon, to go immediately to the relief of Mrs. Annie E. Atkinson, who, in eating some sausage-meat, had lodged a piece of wood in her throat. Defendant, supposing that he would be detained but a few minutes, as the lady's house was not far from his office, went to her and found her in great agony. He endeavored to extricate the stick from her throat, but by reason of her nervous condition and frequent efforts to vomit, he did not succeed at once. When he did succeed, she fainted, and this was followed by nervous or hysterical spells, requiring defendant's attention for about two hours. Another physician (Dr. Sterling) was sent for, and as soon as he arrived deponent left and went to the Court-house. When he reached there, the trial was ended, or about ended, as deponent was informed, and being told that he was too late, and not knowing or supposing that he would then be heard, he went away and gave his attention to other urgent profes sessional business. Deponent believes that it was between nine and half-past nine o'clock, A. M., when he went to see the lady, and that he reached the Court-house before twelve o'clock, M. He says he was at the time a regular practicing |