left open to depend upon the facts as they should thereafter appear in relation to the estate of the plaintiff as of the date of the divorce decree, but the question as to the date from which the payments should be made to commence was settled by the decree of affirmance, and cannot now be reopened. The authorities in support of this proposition are numerous. Many of them are cited in the opinion of the court, delivered by Judge RICHARDSON at the present term, in the case of Savings Inst. v. McVeigh, 3 S. E. Rep. 885, and in Railroad Co. v. Casenove, Id. 433, recently decided at Staunton. The decree complained of is therefore erroneous in so far as it directs the payment of alimony to commence as of a date prior to the 1st day of October, 1882, and nothing more upon that point need be said. These 2. In other respects the decree is unobjectionable. It appears from the report of the commissioner that at the time the decree of divorce was rendered the fair value of the plaintiff's property of all kinds was $3,800, and that he was then and is now "of good business habits and capacity." Among the property reported by the commissioner is the sum of $500, being one-fourth of a legacy of $2,000 bequeathed to the plaintiff and three others by the will of Mrs. Mary Carter, deceased, and for which a decree was rendered by this court in favor of the legatees in the case of Ferguson v. Epes, 77 Va. 499. To this report the plaintiff excepted on two grounds, as follows: "(1) Because there is no report as to the faculties and capacity of the defendant to earn money; (2) because there is no full and accurate inquiry and report as to the suit of Ferguson v. Epes, from which it would have appeared that the plaintiff got nothing under the said decree along with the other appellants, (legatees,) save Jas. H. Ferguson, to whom the other appellants, including the plaintiff, had released and assigned all their interest in the said suit in consideration of his taking the appeal and defraying the costs thereof. exceptions the circuit court properly overruled. "The capacity of the defendant to earn money" was not a question in the case, and was therefore not a proper subject of inquiry by the commissioner. The only question under the decree of this court to be referred to a commissioner touching the quantum of the allowance to the defendant was the value of the plaintiff's property at the date of the divorce decree. All other questions relating to that subject were settled by the decree, which this court affirmed, and, as already said, could not be thereafter reopened or inquired into. And as to the second exception, it is sufficient to say that it does not appear that it was pretended before the commissioner that the plaintiff's interest in the suit of Ferguson v. Epes had been released, and the allegation that it had been released rests upon no other foundation than the bare assertion of the fact in the exception to the report. If such was the fact, it is hardly necessary to say that it was incumbent on the plaintiff not only to show it, but to show when the transaction occurred, and, in the absence of proof, or the offer to produce any, on the subject, the circuit court could not have properly done otherwise than overrule the exception, as it did. It is proper to say, also, that the evidence upon which the commissioner acted was returned with his report, and sustains his conclusions. This is said in answer to several objections to the report which are made for the first time in the petition for appeal. Besides, the matters in relation to which these exceptions are taken are such as may be affected by extraneous evidence, and the exceptions, therefore, come too late. The rule is that the parts of a report not excepted to are to be considered as admitted to be correct both as regards the principles and the evidence upon which they are founded, otherwise the opposite party would be taken by surprise, and in consequence thereof injustice might be done. Exceptions partake of the nature of special demurrers, and hence as the authorities say the party excepting must "put his finger on the error" that the court may see what it has to decide. It is too late, however, to do so for the first time in the appellate court, unless the report be erroneous on its face. 2 Rob. (Old) Pr. 383; Simmons v. Simmons' Adm'r, 33 Grat. 451; Morrison's Ex'r v. Householder, 79 Va. 627; Ashby v. Bell's Adm'r, 80 Va. 811. The question, then, is whether the allowance decreed in favor of the defendant is excessive. In the case of Bailey v. Bailey, 21 Grat. 43, wherein a divorce from bed and board was decreed, the property of the husband was estimated to be worth the sum of $9,533, and this court affirmed a decree of the lower court allowing the wife, as alimony, $30 per month. The case was very fully considered, and is a leading one in Virginia. The opinion of the court was delivered by Judge CHRISTIAN, in the course of which he said: "In regard to the allotment of alimony there is no fixed rule. It is a matter within the discretion of the court. Yet it is not an arbitrary, but a judicial, discretion, to be exercised in reference to established principles of law relating to the subject, and upon an equitable view of all the circumstances of the particular case;" citing 1 Bish. Mar. & Div. § 603; Burr v. Burr, 7 Hill, 207; and other cases. "The general rule in respect to alimony," he continued, "is that the wife is entitled to a support corresponding to her condition in life and the fortune of her husband. And, in the language of NELSON, C. J., in Burr v. Burr, supra, 'when the delinquency of the husband has been established, and the wife is the injured party, driven by his cruelty or other wrongful conduct from the comfort of domestic enjoyments, she should be liberally supported.' It was also said in the same case that the duty of a husband to maintain his wife does not depend alone upon his having visible, tangible property, and that where she obtains a divorce on account of his misconduct, she is entitled to a decree for alimony, based upon his ability to earn money, if he has no property. The general rule undoubtedly is that the income of the husband, whether derived, or to be derived, from his personal exertions or from permanent property, or from both, is the fund from which alimony is decreed, and the amount, as already said, will depend upon the particular circumstances of each case. 2 Bish. Mar. & Div. (5th Ed.) §§ 445, 455, 471, et seq., where the subject is ably discussed, and the authorities are collected. See, also, 1 Minor, Inst. 282, 283; Harris v. Harris, 31 Grat. 13; Carr v. Carr, 22 Grat. 168. These principles, applied to the facts of the present case, as they appeared on the former appeal, (79 Va. 182,) supplemented by the commissioner's report above mentioned, lead to the conclusion that the decree, so far as the allowance to the wife from the 1st day of October, 1882, is concerned, is right. But in the particular already mentioned, namely, in directing the payments to commence as of a date prior to that time, the decree is erroneous, and to that extent must be reversed, with costs to the appellant. Affirmed in part and reversed in part. (79 Va. 435) GRIER v. CROSS. (Supreme Court of Georgia. February 18, 1888.) APPEAL-FAILURE TO SHOW ERROR-AFFIRMANCE. Plaintiff rented land to defendant on shares, and levied under a distress warrant upon the growing crop. Defendant filed a counter-affidavit and bill, and asked for a receiver. Verdict was found for plaintiff for $33.75. The receiver having funds to be distributed, a decree was made that, after paying costs, he divide the balance equally between plaintiff and defendant, reserving from defendant's portion the $33.75. Held that, no error being shown by the record, the decree will be affirmed. Error from superior court, Terrell county; JOHN T. CLARKE, Judge. The plaintiff rented land to the defendant, it being agreed that one-half of the entire crop was to belong to. each. The proceedings under a distress warrant by plaintiff were superseded by a bill in equity filed by the defendant, and the decree referred to in the opinion was made in the equity cause. Simmons & Guerry, for plaintiff in error. J. M. Griggs, C. B. Wooten, and J. G. Parks, for defendant in error. BLANDFORD, J. Grier rented to Cross a tract of land. The growing crop thereon was afterwards levied upon under a distress warrant for $400 in favor of Grier against Cross. Cross filed a counter-affidavit, setting up that he was not indebted, and also filed a bill and asked for the appointment of a receiver to take charge of the crop and gather and market the same; and a receiver was accordingly appointed. The case went to trial, and the jury found a verdict in favor of Grier for $33.75. The court, (there being funds in the hands of the receiver to be distributed,) decreed-First, that all the costs and charges accruing in the case, to-wit, the fees of the auditor and court costs, the pay of the receiver, and the expenses of gathering and housing and marketing the crop, be first paid out of this fund, and that the balance, when ascertained, be equally divided between Cross and Grier; but that out of the amount going to Cross, the verdict of $33.75 in favor of Grier, should be paid. This decree is excepted to, and error assigned thereon. The decree upon its face seems manifestly right to us. We do not see how the chancellor could have decreed otherwise than he did. The record in this case is very meager, the bill and answer, etc., not being sent up as a part of the record. No error appearing in the decree itself, and the record not showing any error therein, we must affirm the decree. He who alleges error must show it; and the plaintiff in error having failed to show any error in this record, the judgment is affirmed. (80 Ga. 508) HOLTON . TAYLOR et al. (Supreme Court of Georgia. March 28, 1888.) 1. JUDGMENT-OPERATION AND EFFECT--RES ADJUDICATA. Under Code Ga. § 3577, declaring judgments of courts conclusive between parties and privies, the finding of a court that property was not subject to execution is conclusive evidence of that fact in trespass by the owner of the property against the execution creditor for an illegal levy. 2. TRESPASS-WHAT CONSTITUTES-ILLegal Levy. It is trespass per se to levy upon property not subject to the execution, and not in possession of the execution debtor. 3. SAME-ILLEGAL LEVY-MALICE. In trespass for illegal levy on property not in possession of the debtor, it is not necessary to show malice or want of probable cause, when only actual, and not exemplary, damages are claimed. Error from superior court, Appling county; ATKINSON, Judge. Trespass for illegal levy by I. S. Holton against W. H. Ellis and A. B. Taylor. Judgment for defendants, and plaintiff brings error. Code Ga. § 3577, declares that the judgment of a court of competent jurisdiction is conclusive between parties and privies as to the facts it decides, until reversed or set aside. G. J. Holton & Son and S. W. Hitch, for plaintiff in error. SIMMONS, J. It appears from the record in this case that W. H. Ellis obtained a judgment against James Simmons in a justice's court in Ware county, on which judgment an execution was duly issued and placed in the hands of A. B. Taylor, a constable of Appling county. Under the direction of Ellis, Taylor, the constable, levied the execution upon a horse in the possession of I. S. Holton, and took the horse from the possession of Holton. Holton filed a claim to the horse. The fil. fa. and claim were returned to the justice's court whence it issued. The claim was tried, and the horse found not subject to the judgment and fi. fa. Holton, the claimant, then brought a suit in trespass against Ellis, the plaintiff in fi. fa., and Taylor, the constable, for an illegal seizure and levy. On the trial of the case in the court below, under the charge of the court, the jury returned a verdict for the defendants. The plaintiff made a motion for a new trial upon the several grounds contained therein, which was overruled by the court, and plaintiff excepted. was: One of the grounds of error complained of in the motion for a new trial "Because the court refused to give in charge the following request of the plaintiff: If the jury believe from the evidence that the plaintiff in fi. fa., W. H. Ellis, ordered the other defendant, A. B. Taylor, constable, to levy upon the horse in the possession of the plaintiff, it would be a trespass per se, and the plaintiff would be entitled to recover what damages he has shown he has sustained, and the defendants could only defeat a recovery by showing the property was or is subject to the fi. fa. so levied; and the judgment of the court, if they should find any such in evidence, finding the horse so levied on not subject would be prima facie evidence that the horse was not subject;'-which request the court refused, but charged the jury as follows: If the jury believe from the evidence that the horse levied on was in possession of Simmons, the defendant in fi. fa., at any time subsequent to the rendition of the judgment, and that the plaintiff in execution knew of that fact, and in good faith levied upon the horse, then the plaintiff could not recover. In order to authorize a recovery upon the part of the plaintiff, it is incumbent upon the plaintiff to show that the levy of the execution upon the property of the plaintiff was made with malice and without probable cause. The absence of probable cause is a circumstance from which the inference of malice might arise, but if the jury find that there was probable cause for the levy, under the rules given them in charge, they could not find in favor of the plaintiff at all.'" The refusal to give the written request and the giving of this charge is excepted to. We think the court erred in not giving the charge set out in the motion. The request of the plaintiff did not state the law as strongly as he was entitled to have it stated. The request, in substance, was that the court should charge the jury that if they believed that the court that tried the claim case had found the property not subject, the judgment of that court would be only prima facie evidence that it was not subject. We think, however, that the judgment of the court between these parties finding the property not subject, instead of being prima facie only, was conclusive evidence upon that subject, (Code, § 3577,) and if the plaintiff had requested the court to so charge the jury, we think the court ought to have done so; and this property being in the possession of a third party, and not in the possession of the defendant in fi. fa., the court should have given the other part of the request also, to-wit, that it was a trespass per se to levy thereon. McDougald v. Dougherty, 12 Ga. 613. This court held that "the levy of an execution against A., upon property in the possession of B., is a trespass; and the plaintiff in execution, the attorney for the plaintiff in execution, who orders the levy, and the officer who makes it, are all liable as trespassers, unless they justify by showing that the property belonged to the defendant in execution, and was liable to the execution." In the case of Wallace v. Hally, 13 Ga. 389, the case of McDougald v. Dougherty, above cited, was considered and approved; and the court say: "That was the case of a fi. fa. founded on a general judgment against A., levied upon property in the possession of B. We held the sheriff a trespasser; we held that it was the perversion of a legal process; that it was the right of the officer to judge of the fact whether property not in the possession of the defendant was subject to the execution; that he must judge at his peril, and if he did levy, he must justify, and show that the property was the property of the defendant, in order to protect himself against damages. We have no fault to find with that ruling." And the court adds that the burden of proof was on the defendants to show that they were justified in the levy. In Turner v. Irwin, 35 Ga. 254, this court says that the levying officer "acts upon his own judgment and responsibility. If the property is not subject, the defendant can bring trespass," etc. We think the court also erred in charging the jury, as above set out, that it was incumbent upon the plaintiff to show that the levy was made with malice and without probable cause; and that if there was probable cause for the levy, they could not find in favor of the plaintiff at all. This was not a suit for the malicious abuse of legal process; no malice or want of probable cause was alleged in the declaration; but it was a suit for the actual injury occasioned the plaintiff by the illegal levy of the fi. fa. In cases of this kind, where a suit is brought for the actual injury occasioned by the illegal levy, it can be sustained without the allegations of malice or want of probable cause. The plaintiff recovers for the actual injury sustained by him, and the necessary expenses which he has incurred in recovering this property. The measure of damages is different in cases of malicious abuse of legal process without probable cause from what it is in cases where the suit is brought simply for the actual damages. In the former, exemplary or vindictive damages may be given by the jury; in the latter, only such damages as arise from the injury to the property, and expenses of recovering the same. The case at bar was of the latter class; and we think that the judge erred in charging the jury that the plaintiff could not recover at all unless he had shown malice, or want of probable cause. Upon the distinction between these different classes of actions, see Juchter v. Boehm, 67 Ga. 534. Judgment reversed. (Supreme Court of Georgia. April 16, 1888.) EQUITY RESCISSION OF CONTRACT-WHen Granted. When a person pending negotiations for the exchange of certain property for a farm visits the farm for the purpose of making an examination, but is prevented from so doing by the weather, and no fraud is practiced on him by the owner, his contract of sale and exchange will not be rescinded. Error from superior court, Fulton county; CLARKE, Judge. Bill to rescind contract for sale and exchange of land, brought by Fuller against Buice. There was a judgment for defendant, and Fuller brings error. T. P. Westmoreland, for plaintiff in error. John B. Goodwin and J. A. Anderson, for defendant in error. BLANDFORD, J. Fuller brought his bill in the superior court of Fulton county against Buice et al., for the purpose of rescinding a contract for the sale and exchange of land. The complainant alleged that, being the owner of a lot of land in the city of Atlanta, which he was desirous of exchanging for a place in the country to which he could carry his children and raise them, he applied to Hendrix & Osborn, real estate brokers of Atlanta, to find if they had for sale a place in the country; that he was informed by them that they had for sale a place in the country, some six miles from Atlanta, containing upwards of 86 acres; that he was given a memorandum describing the land, and was requested to go and examine it; that he went to the place to examine the land, but that while he was there it was sleeting very hard, and he did not examine the land; that he afterwards met Mr. Buice, the owner of the land, who made certain false representations to him as to the value of the land and its condition, and its fitness for cultivation; and that he thereupon made the exchange. The bill prays that on account of these false representations the contract for the exchange of the land be rescinded and set aside. The evidence shows that Fuller visited the place in the country in order to examine the land, as stated, and was unable to do so on account of the sleet; that he afterwards met Buice, and proposed to trade with him; and, according to Buice's statement, he (Buice) proposed to tell Fuller something about the land, but Fuller told him that he (Fuller) knew more about it than he did; and v.6s.E.no.1-2 |