Baker and Wife and others vs. Bush, adm'r. At the trial Term he moved to dismiss the cause for want of due and legal service. The Court refused the motion and we affirm his judgment. Judgment affirmed. MORRELL BAKER and WIFE, and others, plaintiffs in error, vs. DAVID B. BUSH adm'r. of SUSANNAH ALEXANDER, defendant in error. An administrator may retain a debt due to himself from his intestate, though the debt was barred by the statute of limitations, at the death of the intestate. Equity from Talbot-bill for account. Decision by Judge LAMAR, March Term, 1858. The complainants, plaintiffs in error filed their bill against the defendant to compel him to account to them as the distributees of his intestate, for their distributive shares of the estate in his hands. After argument had, the Court charged the jury: "that the administrator had a right to retain, for a debt due to himself, though barred at the time of the death of the intestate by the statute of limitations." Whereupon counsel for complainants excepted to said charge and assign the same as error. SMITH; and INGRAM & RUSSELL, for plaintiffs in error. By the Court.--BENNING, J. delivering the opinion. Is an executor or administrator bound to plead the statute of limitations to a suit against him, on a cause of action Baker and Wife, and others vs. Bush, adm'r. barred by the statute, at the death of the testator or intestate? It is certain that he is not, if the letter of the statute is to govern. And it seems certain, that he is not, if decided cases are to govern. Norton vs Fluker, 1 Alkyns 526. Castleton vs. Fanshaw Prec. Ch. Ex-parte Dewdney 15, Ves. 498. Wms. Ex'ors 1283. (1535.) Shewen vs. Vanderhorst (1 R. & M. 347,) is hardly to the contrary. In that case "the Lord Chancellor, (Lord Brougham,) held that after a decree for an account of debts, &c., had been pronounced, and the Court by that means had taken possession of the estate, the statute of limitations might be set up in the Master's office, as well by a creditor or legatee as by a personal representative." 2 Dan. Ch. Pr. 157 When the Court has acquired possession of the estate the case becomes altered. The Court then by the Master becomes itself the representative of the estate, and the question whether the statute shall or shall not be pleaded, becomes one for him, and ceases to be one for the executor, (or administrator.) "Whether the Master himself is bound to take the objection, is a question which was discussed in the above case, but his Lordship declined giving any opinion upon it." Id. Ibid. If principle be made the test, it would seem, that the executor or administrator is not bound to plead the statute. The testator or or intestate is not bound to plead it; and the executor or administrator stands in his place. We think, then, that an executor or administrator is not bound to plead the statute. Of course if he is not bound to set up the statute against a debt due from him to a third person, he is not bound to set it up, against a debt due from him to himself in his individual character, but is at liberty to retain the amount of that debt. Judgment affirmed. Galloway vs. The State. WILSON GALLOWAY, plain'iff in error, vs. THE STATE OF GEORGIA, defendant in error. [1] Where there are cross indictments, the acquittal of the defendant who is the prosecutor in the case about to be tried, is no ground for a continuance; nor is the fact that the prosecutor is a member of an influential family, and of the party in the majority, and politics to some extent was mixed up with the trial which had taken place, and had given rise to excitement. [2.] Error cannot be assigned on the conclusion of fact of the presiding Judge acting as trior. Assault with intent to murder, from Twiggs. Tried before Judge LAMAR, March Term, 1858. Wilson Galloway was indicted for an assault with intent to murder, and put upon his trial at the March Term of Twiggs Court, 1858, and found guilty. His counsel moved for a new trial on the following grounds: 1st. Because the Court erred in not granting a continuance of the case, when defendant stated under oath, that he could not safely go to trial at said Term, for that the defendant was the injured party, and on whom, and against whose habitation the offence was committed, for which the said Andrew J. Smith was tried and acquitted on the day before. That said Andrew J. Smith is a member of a very influential family in said county, and the political questions of the day have been to a very great extent mixed up with said case, and operating against him, and would prevent him, the defendant, from getting a fair trial at said Term of the Court, and that he, the defendant, being a member of a political party, in the the minority at that time in said county, and said difficulty having originated in political differences, and the public mind being excited against defendant, he could not safely go to trial at said Term of the Comt, and that he did not make the application for delay, but solely for the purpose of getting a fair trial. 2d. Because the Court decided Britton Oneal to be a competent juror, when said Oneal was the overseer of B. B. Smith Galloway vs. The State. up to the death of Smith in June, 1857, and then continued as overseer and hand until Christmas after, at the homestead; that A. J. Smith resided during this time at the homestead; that the juror was, at the time of the trial, an employee of the brother-in-law of prosecutor, and the wife of said brotherin-law, and sister of prosecutor, and injured party, is still iving. The juror made himself competent under the statute, in his answers to the questions prescribed, and he was put upon the Court as trior, and the Court remarked, in its ce cision, that the juror had said or done nothing to impeach himself, and seemed intelligent, and comprehended fully the questions propounded, and the moral as well as legal responsibility of his oath. 3d. Because the Court erred in deciding that John W. Cowan was an incompetent juror. Cowan was one of the regular panel of petit jurors, and made himse.f competent in his answers to the questions prescribed. The State submitted him to the Court as trior, and it appeared that said juror was on defendant's bond, for his appearance at that Term of the Court. 4th. Because the Court erred in its charge to the jury, when the Court read to the jury the different provisions of the penal code, in relation to murder, malice, manslaughter, justifiable homicide, killing in self defence, and the 13th section of the 4th division of the code, in relation to fear, &c., and commented on the same; none of which comments were excepted to, save the following: That if two persons, in a sudden quarrel, and under the violent impulse of passion, supposed to be irresistible, fight at once, or immediately go to an appointed place to fight while such passion thus continued, and no undue advantage. is taken or sought, and one killed the other, although this might be only manslaughter, yet if, upon agreement, after such falling out or going at once to the appointed place to fight, they do not execute their purpose, but defer the fight Galloway vs. The State. until the next day, and then fight with swords or other weapons, whereby one is killed, such killing would be murder, because there would be sufficient time for the passions to subside, and the voice of reason and humanity to be heard The Court overruled the motion for a new trial, and the defendant by his counsel excepts. STUBBS & HILL; SCARBOROUGH & LOWRY, for plaintiff in error. DEGRAFFENRIED, Sol. Gen. pro tem., for defendant in error. By the Court.-MCDONALD, J. delivering the opinion. [1] This cause is brought up from Twiggs Superior Court for alleged error in the judgment of the Court, refusing the plaintiff in error a new trial. The grounds of the motion are fully set forth in the foregoing statement. The first ground in the rule is the alleged error of the Court in refusing a continuance of the cause, on the motion of the plaintiff in error. There were cross indictments. The defendant in this indictment had prosecuted Andrew J. Smith, (who is now the prosecutor,) for assault with intent to murder. He had been tried and acquitted on the previous day His acquittal was one of the grounds on which the continuance was moved. It by no means follows from the acquittal of Smith, that the defendant in this case was guilty, and there is nothing in the application to show that the jury, on the trial of this case, had to pass on the same evidence. If there was, it might be a cause of challenge to the jurors, but certainly it is no ground on which a continuance should be granted. It was further urged, as a ground of continuance, that the prosecutor, Smith, on whom the assault is charged to have been committed, is a member of a very influential family in the county; that the defendant belongs to the party in the minority; and that the political questions of the |