
    Trippe, Executor, vs. Wynne.
    Complaint, from Muscogee. Practice in Supreme Court. Principal and Agent. Verdict. Accounts Stated. Mistake. Auditors. Practice in Superior Court. (Before Judge Willis).
    R. B. Trippe; A. A. Dozier, for plaintiff in error.
    Peabody & Brannon; Smith & Russell, for defendant.
   Jackson, C. J.

1. The justice of this case, under the law applied to the facts, has not been reached, and the several exceptions and assignments of error are sufficiently specified to authorize a ruling on the vital point involved, though no motion for a new trial was made.

2. Where a sum of money was placed in the hands of the defendant by the plaintiff, to loan out for her, and he so loaned it, or made use of it himself, and the rate of interest agreed and calculated upon between the parties was twelve per cent, per annum up to a certain time and eight per cent, thereafter, and an account stated was made between the parties showing such rates, in a suit for the balance due, in the absence of any plea of usury, the calculation should have been made from the date of the account stated, as fixing the true indebtedness; and it was error for the court to direct a verdict based upon a calculation at the rate of seven per cent, per annum from the time the fund was received.

(a) If any clear and palpable mistake had been made in the account as stated, or there had been any omission of items clearly and satifactorily proved, to the same extent and with the same certainty that courts of equity require in order to correct mistakes, then such mistake or omission could be corrected at law in this State; but in the absence of pleadings to that effect and of clear proof before the auditor of such mistake, or before the jury on exceptions to the auditor’s report, the account stated must stand.

Judgment reversed.  