
    Ferguson et al. v. The Beck & Gregg Hardware Co.
    1. Where an execution against an administratrix directs the seizure, not of her individual property, but of the property of her intestate in her hands to be administered, an entry of levy made by tile proper officer on the execution, to the effect that he had levied on certain described land as the property of the administratrix, should be construed as meaning the property of the estate which she represented and not her own property individually. Th e levy, though informally entered, is a sufficient exercise of the power conferred by the writ. Gibson v. Robinson, 90 Ga. 756, 16 S. E. Rep. 969.
    2. It is not cause for a new trial that the losing party neglected to inform his counsel of an obviously material fact until the trial was in progress, and that a remark then made was not heard by counsel and consequently that he remained ignorant of the fact until after the trial was concluded. Due diligence in preparing for trial would have obviated any want of a full and correct understanding of the case.
    July 17, 1893.
    Levy and claim. Before Judge Martin. Talbot superior court. September term, 1892.
    The execution “ commanded, that of the goods and chattels, land and tenements, of T. L. Patrick deceased, in the hands of Mrs. S. C. Patrick, adm’x,” certain sums be made, which plaintiffs “ recovered against the said Mrs. S. 0. Patrick, adm’x of T. L. Patrick.” The levy was upon a house and lot “as the property of Mrs. S. C. Patrick, administratrix of the estate of T. L. Patrick, deceased.” The property was found subject, and claimant’s motion for a new trial was overruled. The motion contained the general grounds, and the ground that on the trial Ferguson, one of claimants, while the testimony was being introduced, told Willis, counsel who was examining the witnesses, that the property levied on was sold at administrator’s sale as the property of Patrick and bought by claimants at said sale, and Willis did not hear what was said to him and for that reason it was not provéd; it being a fact that the property was so sold by the administratrix and bought by claimants and their title derived from said purchase; and it was not because of counsel’s or claimants’ negligence that the testimony was not introduced; the other counsel for claimants not being present when Ferguson made such statement, and not knowing of it. In support of this ground was produced the affidavit of Ferguson, that the sale by the administratrix was made on January 3,1888, at regular administratrix’s sale under regular order of the court of ordinary after legal advertisement; that claimants bought the property at this sale and paid the purchase money therefor, $202 ; and that during the trial he told this to Willis, one of his counsel. Also, affidavit of Willis, that he did not know of the facts stated, and did not hear Ferguson tell him the property had been sold at administratrix’s sale. Also, affidavit of the other counsel for claimants, that he did not know of the administratrix’s sale when the case was tried, and did not know until after the trial that the property had been sold.
   Judgment affirmed.

Willis & Persons, for plaintiffs in error.

A. J. Perryman and J. J. Bull, contra.  