By the Court.
Lumpkin, J.delivering the opinion.
In viewr of what the Court considers the legal merits of the case made in this record, we deem it unnecessary to consider any of the questions made in the bill of exceptions.
[1.] It is shown by the testimony of General Eli Warner, *213the attorney of Irvin Bulloch, that the motion in this case, was made at his instance, and for his benefit. We recognize no right in Bulloch to make this motion. He had no status in Court which would authorize it; he had claimed property which had been levied on by this fi. fa. and the issue had been found against him; and on that trial it -was proven that the execution was not satisfied, and so found by the Jury. To prevent the sale of the land, he again comes before the Court, and seeks the benefit of a second trial upon a point which had already been decided against him. Upon the fact being disclosed to the Court, that Bulloch was the movant in this rule, it was the duty of the presiding Judge, ex mero motu, to have dismissed it. And the cause is remanded with this instruction.