In 1860, John Neal obtained a judgment against Whitmell L. Sterling for $2,500 00, which was transferred to Park and James Arnold. In 1867, execution therefrom was levied upon certain lands in Troup county. The lands were claimed by John R. Sterling. Subsequently Park Arnold died, and his administrators were made parties. The defendant, Whitmell L. Sterling, and the claimant, John R., were brothers. Whitmell was John’s guardian, and the administrator on their father’s estate. The jury found .the lands not subject. The plaintiffs moved for a new trial. The court granted the now trial on four grounds, and the plaintiffs excepted.
The first ground for new trial on which the court granted it, is that the verdict is against the evidence and the charge of the court. It has been repeatedly ruled by this court that we will not control the discretion of the court below in granting a new trial on this ground unless his discretion has been abused, and that we will be more reluctant to interfere when he grants than when he refuses the new trial. We think, after carefully examining this voluminous record, that 'the court below has not abused his discretion. The charge was, that unless John’s money bought the lands, the title being in the guardian, individually, it was subject. The impression made upon our minds is, that the verdict is right in part and wrong in part, and in the head-notes the legal principles applicable to the case, and which will guide the court and the parties in a subsequent trial, are as clearly laid down as we can make them appear. Some of the funds of the defendant, and some of the claimant’s were, perhaps, used in the purchase and improvement of several of the items of *693property levied on and claimed; and, without the application of equitable principles to the case, it seems impossible to do complete justice. The pleadings may be so framed at law in this claim case as to present the issues fairly, and the jury may so mould a verdict as to do justice on principles of equity, or the parties, or either of them, may resort to equity, at their election.
The second ground is, .that the court erred in admitting the sayings of defendant in favor of claimant; and on the motion, the court ruled that he did err in that regard, and granted the new trial on this ground. Whether he erred or not, we think, turns on the time when the defendant in ji. fa. made the admissions. If before suit against him, and while the formal title was in him, we think them admissable; if afterwards, inadmissible. Probably some were made before, others after; the record does not disclose the date of each admission ; on the new hearing it can be fixed : 8 Georgia, 66; 20 Ibid., 220, 240; 28 Ibid., 170.
The third ground on which the new trial was granted is, that the court erred in ruling out the bond given by defendants for the forthcoming of these lands on an affidavit of illegality to this ji. fa., whereon the claimant was their security. There was no necessity for a bond for the forthcoming of lands, and we think the suretyship of claimant thereon, does not estop him from claiming the lauds afterwards, as seems to have been the idea of the court below. We think, however, the bond admissible as a circumstance, slight perhaps, but a circumstance going to show collusion between the defendant and claimant, and to be given such weight by the jury as they think it deserves.
The fourth ground is newly discovered evidence. Prom the affidavit, it seems that the claimant received from the defendant, his guardian, some thousands of dollars more than appeared on the trial, in property from one Cameron, who was indebted to defendant, and turned over the property to claimant by direction of defendant. One important question made on the trial was, the amount that the defendant owed claim*694ant as guardian, and the testimony is material in this view, nor is it cumulative, but to a new and independent fact.
The plaintiff in error complains that the parties plaintiff do not swear to the want of knowledge of this evidence, but we think it unnecessary as they lived out of the county, and had nothing to do with the preparation and management of the case, and the newly discovered evidence is in the county. In such a case, the oath of counsel as to diligence, and ignorance of the evidence at the trial is sufficient.
We think that the court erred against the claimant in not allowing him to testify in rebuttal of the evidence of Bingham and Ferrell, though Arnold, one of the plaintiffs, the assignees of the judgment, was dead, and his administrators parties. The deceased had no connection at all with the facts testified to by Bingham and Ferrell. They occurred after his death; at all events, lie had no connection with them; the other transferree and plaintiff was living, and we think the reason of his exclusion as a witness ceases to exist in such a case.
On the whole, we will not interfere with the grant of the new trial. We think justice demands that it should be had; and that the pleadings be so framed, and the allegations on all material points be so distinctly made that the jury may be able to pass distinctly upon each item of property, whether subject or not subject, and in what proportion subject; or that either plaintiffs or claimant, at their option, may go into a court of equity and have their respective equities there settled. Under our statute that parties need not go into equity but may have equitable principles and relief given and applied at law, we do not see why the pleadings may not be so framed here as to do justice to all; but we think the case presents such issues as peculiarly are equitable, and we will not control either party from carrying the other into chancey regularly, if desired: Code, sections 3082, 3095.
Judgment affirmed.