
    Maddox et al. v. Morris, executrix.
   Lumpkin, P. J.

1. This court can not undertake to say that a trial judge did not'correctly state to the jury the contentions of the parties to a case on trial, when he certifies that he did state the contentions as made. Certainly the losing party has in this respect no cause of complaint, when, irrespectively of his contentions, the precise law of the case was, as in the present instance, clearly stated to the jury.

2. When counsel, while arguing a case to a jury, requested the court to instruct them that “where a charge of fraud, or the like, was made and the party so charged failed to rebut it or produce evidence to disprove it, the jury might presume its truth,” and, after remarking that he had no doubt the court would comply with his request, proceeded to make several charges of fraud against the adverse party, frequently using the expression, “I charge,” etc., and in so doing going outside of the evidence, the court did not err in instructing the jury that “oral charges or insinuations in argument” and “not under oath” did not cast upon the party at whom they were directed the burden of disproving the same, the jury being also instructed to try the case according to the evidence and all the inferences to be legitimately drawn therefrom.

3. Although the pleadings may not embrace any charge of fraud against either party, yet, if the issue involved is one of fraud, the mere inaccuracy on the part of the judge of alluding to the pleadings while calling the attention of the jury to the charges of fraud made against a party is not cause for a new trial.

4. Where, in answer to a, question from the jury as to “whether they could take into consideration all the circumstances or just go directly by the evidence,”- the court replied that “the jury would look at all the evidence in the case and are authorized to draw such legitimate conclusions as properly flow from what is proved,” and in the same connection instructed them that “evidence may be either direct to a, fact or by circumstances which point out or indicate that fact,” and further, that “in so far as the evidence produced either directly proves a fact or as it may fairly be inferred or concluded from the evidence produced it is within the province of the jury to consider all the light they can gain from the evidence”: Held, that the juror’s question was fully and properly answered.

Argued December 19, 1899.

Decided January 31, 1900.

Levy and claim. Before Judge Lumpkin. Fulton superior court. September term, 1898.

C. D. Maddox, for plaintiffs.

E. M. & G. F. Mitchell and Rosser & Carter, contra.

5. While the evidence in this case would have warranted a finding for the plaintiffs in error, there was ample testimony to sustain the verdict against them, and the record discloses no sufficient reason for ordering a new trial.

Judgment affirmed.

All the Justices concurring.  